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2015 DIGILAW 403 (ORI)

Dasharatha Panda v. State of Orissa

2015-07-10

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. Challenging the orders of the Director, Higher Education, Odisha, Bhubaneswar dated 28.01.2010 and 22.09.2011 as per Annexures-10 and 12, denying approval of appointment/promotion of the petitioner to the posts of Senior Clerk and Head Clerk under Opposite Party No. 3-College w.e.f. 1.5.1983 and 1.6.1988 respectively, the petitioner has come up before this Court. The short facts of the case are that the Vesaj Patel College, Hemgiri, Duduka in the district of Sundargarh is an Aided Educational Institution within the meaning of section 3(b) of the Orissa Education Act. The said college was established in the year 1982 and received concurrence of the State Government of Orissa from the session 1983-84 and grant-in-aid w.e.f. 1.6.1988. The college is imparting education both in +2 and +3 stages and is a category-I institution. 2. The State Government has prescribed yardstick for appointment of the non-teaching staff for the private colleges as per Government circular dated 8.7.1977, Annexure-a, and as per the yardstick a college having roll strength up to 250, is entitled to have one post of Sr. Clerk and one post of Jr. Clerk. The, yardstick for appointment of Ministerial staff has been prescribed under clause-l of the statement, which reads as follows: YARD STCK FOR APPOINTMENT OF MINISTERIAL STAFF: 1. Colleges having roll-strength up to 250 (Two hundred and fifty) (a) One Senior U.D. Clerk in the scale of pay Rs. 300-410/-, 320-350/-, 840-1345/-. (b) One Junior L.D. Clerk in the scale of pay Rs. 255-360, 255-390/-, 780-1160/-. (c) One L.D.-cum-Typist in the scale of pay Rs. 255-360/-, 255-390/-, 780-1160/- provided, however, that when the roll-strength reaches 350 (Three hundred and fifty the staff shall consist of, in the pay scales of 320-450/-, 340-630/-, 1090-1950/-. (d) One U.D. Clerk in the scale of pay Rs. 300-410/-. (e) One L.D.C.-cum-Typist in the scale of pay Rs. 255-360/-. It further stipulates that when the roll strength reaches 350, the college is entitled to one Head Clerk, one U.D. Clerk and one L.D. Clerk-cum-Typist. Therefore the posts of Clerk/Ministerial staff in a college depends upon its roll strength. 3. Following the due procedure of selection, the petitioner was selected and appointed as a Clerk in the college by the Governing Body pursuant to appointment order issued on 30.06.1982, vide Annexure-2, and he joined on 1.7.1982, vide Annexure-3. Thereafter he was promoted to the post of Sr. 3. Following the due procedure of selection, the petitioner was selected and appointed as a Clerk in the college by the Governing Body pursuant to appointment order issued on 30.06.1982, vide Annexure-2, and he joined on 1.7.1982, vide Annexure-3. Thereafter he was promoted to the post of Sr. Clerk by the Governing Body pursuant to resolution No. 5 dated 3.8.1983 w.e.f. 1.5.1983 which was communicated to the petitioner, vide letter No. 315 dated 24.10.1983 Annexure-4. While the petitioner was so continuing, since the roll strength of the college increased, the Governing Body in its Resolution No. 12(v) dated 27.7.1988 promoted him to the post of Head Clerk w.e.f. 1.5.1988 which was communicated to him vide letter No. 481 dated 26.10.1988 Annexure-5. The petitioner had been promoted and appointed to the posts of Sr. Clerk and Head Clerk prior to the institution came into grant-in-aid fold and while approving the staff position of the college, the Director, Higher Education, Orissa, opposite party No. 2 vide his order dated 09.03.1990 (Annexure-6) communicated the order of approval of appointment of the petitioner against the post of Jr. Clerk only w.e.f. 1.7.1982 and his eligibility to receive 1/3rd grant-in-aid from 1.6.1988. Since the promotion of the petitioner to the posts of Sr. Clerk and Head Clerk was not approved, the college authority requested opposite party No. 2 to accord approval to the promotions of the petitioner, but the matter lay pending for no reason. The Director, opposite party No. 2 thereafter by his letter No. 51315 dated 11.11.1996 directed the Principal of the college to submit the necessary proposal for approval of appointments of the staff members those who were appointed due to increase of roll strength of the college. Accordingly, the college submitted the records for approval of promotion of the petitioner and other staff members on 29.11.1996, vide Annexure-7. The promotion of the petitioner having not been approved by the Director, the college of the petitioner submitted another proposal for approval of promotions of the petitioner in the posts of Sr. Clerk and Head Clerk by its letter No. 843 dated 8.11.2004, Annexure-9. The promotion of the petitioner having not been approved by the Director, the college of the petitioner submitted another proposal for approval of promotions of the petitioner in the posts of Sr. Clerk and Head Clerk by its letter No. 843 dated 8.11.2004, Annexure-9. Since' no action was taken with regard to approval of the petitioner's promotion, he filed W.P.(C) No. 3874 of 2009, before this Court which was disposed of on 29.6.2009 directing the Director to dispose of the proposal of the Principal of the college to approve the promotion of the petitioner to the posts of Sr. Clerk and Head Clerk. On receipt of the order passed by this Court, the Director, Higher Education, Orissa, rejected the claim of the petitioner in his office order No. 2879 dated 28.1.2010, Annexure-10. Assailing the said order dated 28.01.2010 passed by the Director, Higher Education, Orissa, Annexure-10, rejecting the claim of the petitioner with regard to approval to the posts of Sr., Clerk and Head Clerk, the petitioner again approached this Court by filing W.P.(C) No. 5898 of 2010 disposed of on 13.4.2010, Annexure-11 directing the Director to reconsider' the same in consonance with the ratio of the decision of this Court in the case of Rajendra Prasad Singh v. State of Orissa and others, 93 (2002) CLT 346. In response to the same, the Director, Higher Education, Orissa once again rejected the claim of the petitioner, vide impugned order dated 22.9.2011, Annexure-12, hence this writ petition. 4. Mr. S.K. Das, learned counsel for the petitioner states that while rejecting the claim of the petitioner vide Annexures-10 and 12 dated 28.1.2010 and 22.9.2011, the Director, Higher Education, Orissa did not apply his mind properly in as much as did not consider the petitioner's claim in consonance with the ratio of the decision of this Court in Rajendra Prasad Singh case (supra). Therefore, the conclusion arrived at by the Director, Higher Education, Orissa being absolutely not in conformity with the provisions of law, is liable to be quashed by this Court. 5. Mr. A.K. Mishra, learned Addl. Govt. Advocate for the State, relying upon the counter affidavit filed by the Director, Higher Education, Orissa submits that the impugned order passed by the authority is wholly justified and the same should not be interfered with by this Court. He further states that admittedly the post of Jr. 5. Mr. A.K. Mishra, learned Addl. Govt. Advocate for the State, relying upon the counter affidavit filed by the Director, Higher Education, Orissa submits that the impugned order passed by the authority is wholly justified and the same should not be interfered with by this Court. He further states that admittedly the post of Jr. Clerk was approved w.e.f. 1.6.1988 from which date the petitioner was eligible for 1/3rd grant-in-aid and the petitioner never challenged the said order of approval. Once the petitioner accepted the order of approval w.e.f. 1.6.1988, his claim for promotion to the post of Sr. Clerk w.e.f. 1.5.1983 and Head Clerk w.e.f. 1.6.1988 is not tenable in the eye of law. It is further stated that the Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Conditions of Services) Rules, 1999 came into force w.e.f. 11.11.1999 to regulate the service conditions of the Ministerial employees. In Rule-10 of the said Rules, it is stipulated that promotion to the post of Sr. Clerks shall be made from amongst the Jr. Clerks of the common cadre having (i) rendered at least 4 years of continuous service as such and (ii) passed the Preliminary Accounts Examination. Similarly, promotion to the post of Head Clerk shall be made from amongst the Sr. Clerks of the common cadre having (i) rendered at least 4 years of continuous service of Sr. Clerk and (ii) passed the final Accounts Examination. Further it is mentioned in the OMS Rules that the Departmental Promotion Committee shall meet once a year to decide the cases of promotion to various posts in ministerial cadre on the basis of merit and suitability in all respect with due regard to seniority and follow ORV Act, 1975 and other conditions as reflected in the OMS Rules. Apart from the same, it is urged that Government in SC/ST Department, vide order No. 1124/SSD dated 15.3.2007 issued a circular for reservation in posts and services for SC/ST and other backward classes which has to be followed by the Department at the time of promotion. Therefore, the claim of the petitioner being not sustainable, deserves to be rejected. 6. Apart from the same, it is urged that Government in SC/ST Department, vide order No. 1124/SSD dated 15.3.2007 issued a circular for reservation in posts and services for SC/ST and other backward classes which has to be followed by the Department at the time of promotion. Therefore, the claim of the petitioner being not sustainable, deserves to be rejected. 6. In the backdrop of the admitted facts and law in position, the sole question for determination is as to whether the petitioner, who had not passed the Preliminary and Final Accounts Training Examination could be eligible to be promoted to the post of Sr. Clerk and Head Clerk as per Annexures-4 and 5 respectively. On the basis of the factual matrix, it appears that the petitioner had 'been appointed as a Jr. Clerk and was recommended for grant-in-aid and the same having been considered he was paid grant-in-aid salary as a Jr. Clerk, w.e.f., 1.7.1982 and was then paid 1/3rd grant-in-aid salary from 1.6.1988. It is stated that since the petitioner accepted the 'grant-in-aid salary against the post of Jr. Clerk, he was not entitled to receive the grant-in-aid salary admissible to the post of Sr. Clerk and Head Clerk to which he had been given promotion subsequently. 7. The factum of promotion of the petitioner to the post of Sr. Clerk and Head Clerk is not disputed before this Court, rather the only plea taken by the opposite parties is that unless the petitioner passed the Preliminary and Final Accounts Examination, he is not entitled to receive the grant-in-aid in view of 1999 Rules. 8. Similar aspect came up for consideration before this Court in Rajendra Prasad Singh (supra) wherein this Court held in paragraphs-15 and 16, as follows: 15. 8. Similar aspect came up for consideration before this Court in Rajendra Prasad Singh (supra) wherein this Court held in paragraphs-15 and 16, as follows: 15. The conclusion arrived at by me also finds support from the fact that the State Government vide Notification bearing No. 37807 dated August 17, 1999 framed a set of Rules in exercise of powers conferred under Article 309 of the Constitution in the name and style of the Orissa Government College Ministerial Service (Method of Recruitment and Conditions of Services) Rules, 1999 and by another Notification dated November 11, 1999, the Government in exercise of power conferred under Section 27(2) of the Orissa Education Act framed a set of pari materia rules for the Non-Government Aided Colleges ministerial employees in the name and style of "Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Conditions of Services) Rules, 1999 which came into force with effect from December 17, 1999, prescribing the stipulations for passing Accounts Examination as a condition precedent for promotion to the post of U.D.C. and Head Clerk post. This action of the Government makes it clear that the Government was conscious that till 1999, there was no provision prescribing a stipulation to pass Accounts Examination as a condition precedent for promotion to the higher post in Ministerial Cadre for Non-Government Aided and Unaided Institutions. Admittedly, in the present case, the petitioner was promoted to the post of U.D.C. in the year 1980 and to the post of Head Clerk in the year 1986. Both the posts were permissible under the prescribed yardstick. In view of the fact that neither in 1980 nor in 1986, there was any Rule or Notification laying down a stipulation to pass Accounts Examination as a condition precedent, I have no hesitation to hold that the promotion of the petitioner was not bad nor contrary to Rule. 16. Examining the problem from another angle, it appears that the training and Accounts Examination, was ail-along conducted by the State Government through the Board of Revenue and the candidates for taking said training and appearing the Examination were to be sponsored by the State Government from Government establishments. The petitioner not being an employee of the State Government could not have taken training and appeared the Accounts Examination. The petitioner not being an employee of the State Government could not have taken training and appeared the Accounts Examination. This is also a factor which clearly reveals that till 1999, the embargo of passing the Accounts Examination was not insisted upon so far as Ministerial employees of private of Non-Govt. Educational Institutions are concerned, as there was no mode provided for imparting training or conducting Accounts Examination, so far as Non-Government Institutions are concerned." 9. Subsequently, this Court also held in W.P.(C) No. 561 of 2004 (P. Soleman Raju v. State of Orissa and others), disposed of on 9.2.2004 that the Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Conditions of Services) Rules, 1999 came into force w.e.f. December 17, 1999 prescribing the stipulation of passing Accounts Examination as a condition precedent for promotion to the posts of Sr. Clerk and Head Clerk. The said rules are not applicable to the present case as the promotion of the petitioner was prior to December 17, 1999. 10. Taking in account the ratio decided in P. Soleman Raju case (supra) wherein this Court allowed the writ petition and directed opposite party Nos. 1 and 2 to fix up the pay scale meant for the post of U.D. Clerk from 1.1.1988 and Head Clerk w.e.f. 1.2.1992 and pay differential salary to the petitioner in that case within a period of our months from the date of receipt of the order. Applying the same analogy to the present case and looking into the decisions in the cases of Rajendra Prasad Singh and P. Soleman Raju (supra), this Court is of the considered view that while rejecting the claim of the petitioner, the Director, Higher Education, Orissa had not applied his mind in proper perspective and mechanically rejected the claim of the petitioner, vide Annexures-10 and 12. Therefore, this Court sets aside the orders vide Annexures-10 and 12 and directs the Director, Higher Education, Orissa to fix up salary and emoluments of the petitioner in the pay scale meant for the post of Sr. Clerk from 24.10.1983 and Head Clerk from 26.10.1988 and pay the differential salary and emoluments to the petitioner within a period of four months from the date of receipt of this order. The writ petition is accordingly allowed.