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2016 DIGILAW 1128 (ORI)

Basanta Kumar Patra v. State of Orissa

2016-11-21

D.DASH

body2016
JUDGMENT : The appellant in this appeal under section 24-C of the Orissa Education Act, 1969 (hereinafter called as ‘the Education Act’) calls in question the order passed by the learned State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case No.255 of 2010. The appellant by filing the application under section 24-B of the Education Act before the State Education Tribunal has sought for a direction to the respondent nos.1 and 2 for approval of his service under the provision of Orissa Aided Educational Institutions (Appointment of Lecturer Validation)Act, 1998 (in short hereinafter referred to as ‘the Validation Act, 1998’) as against the 3rd post of Lecturer in Economics of Charampa College, Charampa and for consequential release of Grant-In-Aid w.e.f. 17.10.1998 in modification of the earlier approval order dated 13.04.2010 erroneously making him entitled to receive the Block Grant which, according to him, is illegal and arbitrary. The college in question was established in the year 1979 with +2 Arts course at the beginning. From the academic session 1986-87, the college received necessary concurrence and affiliation for running +3 degree wing. The college received Grant-In-Aid w.e.f. 01.06.1985. 2. In course of time on account of increase in roll strength in the Department of Economics, the Governing Body having taken a decision to appoint a third lecturer in Economics, the appellant finally came to be appointed and he joined on 20.09.1991. The appointment was also approved by the Governing Body in its resolution dated 01.11.1991 and was confirmed by resolution dated 08.08.1992 as it reveals from Annexures-1 to 4. It is the case of the petitioner that at the relevant time of his appointment, the justification for the additional post of lecturer in Economics was found out as per the Government Resolution/Circular dated 08.08.1983 by taking into account the work load of 25 classes per lecturer in a week with its increase providing necessary justification for another post in the college. When the appellant was appointed as lecturer in Economics for the 3rd post, the work load of the college was very much justifying the said appointment. The appellant accordingly continued to discharge his duty as such. Thus, the appellant being appointed in the college after it came within the Grant-In-Aid fold and became an aided college of the Governing Body through its own selection process, the Governing Body was not competent to do so. The appellant accordingly continued to discharge his duty as such. Thus, the appellant being appointed in the college after it came within the Grant-In-Aid fold and became an aided college of the Governing Body through its own selection process, the Governing Body was not competent to do so. So, initially the claim of the appellant to receive the benefit of G.I.A. Order 1994 was not considered. However, the State Government later on came out with the Validation Act, 1988 w.e.f. 17.10.1998 whereby all those lecturers appointed in the aided colleges in between the period 01.01.1985 to 31.12.1992 are declared to have been validly appointed and as such their services standing for regularization, provided they are receiving the salary from the college fund and continuing as such against the admissible or approved post. Accordingly, with the provision in the said Validation Act, 1998, there remained further provisions in the said Act that such appointees would be entitled to get the Grant-In-Aid with effect from the commencement of the Validation Act, 1998, i.e., 17.10.1998. All the colleges being asked to submit their proposals in the prescribed form, the Principal of the college in question pursuant to the same sent the proposal with all the relevant records as per Annexure-6. However, it is stated that for no such cogent and valid reason, the case of the appellant was not considered. It later on came to his knowledge that the authorities finding the 3rd post of lecturer in Economics to be not justified as per the work load statement prior to 31.12.1992, the appellant’s claim had been refused. The case of the appellant is that the computation of work load has been made erroneously and in case it being proper made as per the Grant-In-Aid Order, 1994, the 3rd post of lecturer of the college stands justified from the academic session 1992-93, i.e., on and from 01.06.1992. So, it is his case that his services ought to have been validated under the Validation Act, 1998, he being appointed on 20.09.1991 in the post having the justification since 01.06.1992 and as his case satisfies other conditions laid down therein. It is also stated that although so many other persons similarly situated with the appellant have been extended with the said benefits yet he has been deprived and discriminated on unjustified ground. 3. It is also stated that although so many other persons similarly situated with the appellant have been extended with the said benefits yet he has been deprived and discriminated on unjustified ground. 3. The matter being then continuously raised and placed before the Director and the State Government by filing successive representations, finally the Director referring to Government letter dated 03.04.2010 approved the appointment of the appellant with some other lecturers holding them to be entitled to Block Grant w.e.f. 01.02.2009 as per Annexure-8. This is challenged as wholly arbitrary and discriminatory. In this connection, the case of one Hara Priya Behera, lecturer in Political Science in Indira Gandhi Women’s College, Cuttack has been cited under Annexure-9 stating that being similarly situated in all respect with the appellant; she had so received the benefits of which the appellant has been deprived of. It is the further case of the appellant that his case being squarely covered under the Validation Act, 1998 and payment of salary being guided under section 3(2) of the said Act, the Director’s order merely entitling him with the Block Grant as per the Grant in Aid order, 2009 is untenable. 4. In the counter affidavit the main contention raised to thwart the claim of the appellant is that since +3 degree wing of the said college had not come within the fold of Grant-In-Aid w.e.f. 01.06.1994, the 3rd post of lecturer in Economics does not stand justified in accordance with the work load of +2 wing. So when that +3 degree wing of the college was brought within the Grant-In-Aid fold with the entitlement to receive the grant in aid later, the appellant is not entitled to be extended with the benefit of Grant in Aid Order, 1994. 5. Learned Education Tribunal as it appears has aptly gone to formulate the point for consideration that whether the appellant is entitled to validation of his service under the Validation Act, 1998 and consequential release of Grant-In-Aid as per section 3(2) of the Validation Act, 1998 or not. 5. Learned Education Tribunal as it appears has aptly gone to formulate the point for consideration that whether the appellant is entitled to validation of his service under the Validation Act, 1998 and consequential release of Grant-In-Aid as per section 3(2) of the Validation Act, 1998 or not. Proceeding to answer the said point for determination at para-6 of the judgment, it has however abruptly concluded that since the Director, Higher Education has found that the 3rd post of lecturer in Economics was not justified prior to the notification of +3 degree wing of the college as an aided one which is final as per para-9(2)-C of Grant-in-Aid Order, 1994, the claim of the appellant for validation of service does not fall within the fold of the Validation Act, 1998 and for other benefits flowing therefrom. 6. Learned counsel for the appellant contends that nowhere in the Validation Act, 1998 the concept of receipt of wing wise Grant-In-Aid to a College is provided so as to attract the said provision under the said Act. According to him, the Validation Act, 1998 with reference to the G.I.A. Order, 1994, this college in question, clearly falls as Category-1 institution as per para 4(a) of the Grant in Aid Order, 1994 which further provides at para 5(i) that all non-government educational institutions are deemed to be aided educational institutions. He next contends that as per Clause-9(2)-C of G.I.A. Order, 1994 the workload is prescribed for determination of the admissibility of a post and in consonance with the same, the computation has to be made taking into account the total work load of +2 as well as +3 degree wing in all the streams conducted in the institution and similarly as per Clause 2(d) of the said Order, the work load is required to be determined with reference to the actual enrolment during the academic year in which the post is admissible limited to the strength of students for which recognition and affiliation has been given. It is further contended that as per the Government resolution dated 06.11.1990, the colleges mean aided colleges having government concurrence and University affiliation for opening of +3 degree wing by 01.04.1989 and as per the Validation Act, 1998, it is not required that such lecturers should have been from the beginning appointed in the aided educational institution so as to get the benefit of the validation of their services as also to the entitlement to the Grant-In-Aid. With the above, he sums up his argument contending that the Tribunal’s order is wholly unsustainable both in fact and law and it has not dealt with the matter in hand in accordance with the provision of law governing the field so as to examine the acceptability of the claim of the appellant being properly scanned under those provisions of law and instead the order of the Director has been taken by the Tribunal to be having the final say in the matter which is untenable since the very provision confers the jurisdiction upon the Tribunal to adjudicate upon the matter which exercise has not been taken up independently. In support of his contention, he has placed reliance upon the decision of this Court in case of M/s. Bilkesh Parveen Vrs. State of Orissa & another, 2007(I) OLR, 133 and State of Orissa and another Vrs. Sarada Prasanna Mohapatra, 2011 (Supp.I) OLR, 775, while further contending that the said order passed in case of Bilkesh Parveen (supra) having been called in question at the behest of the State before the Apex Court, the same has been confirmed being not interfered with and thus the principles stand finally decided therein. 7. Learned Additional Government Advocate contends all in support of the order of the learned Tribunal and according to him, the Tribunal did commit no mistake in accepting the order of the Director by disallowing the claim of the petitioner as regards his entitlement to be covered under the Validation Act, 1998 in getting his service validated and consequentially his entitlement to the benefit as provided under the G.I.A. Order, 1994. He contends that +3 degree wing of the college having come within the Grant-In-Aid fold later, the appellant cannot get the benefit as claimed from an anterior period and thus he has been rightly allowed with the block grant. He contends that +3 degree wing of the college having come within the Grant-In-Aid fold later, the appellant cannot get the benefit as claimed from an anterior period and thus he has been rightly allowed with the block grant. He next submits that the petitioner being appointed validly by the Governing Body of the college in the +3 wing when that wing was not within the fold of Grant-In-Aid, the question of his service standing validated and as such regularized under the Validation Act, 1998 does not arise and therefore his claim as laid is not entertainable in the eye of law. 8. In case of Bilkesh Parveen (Supra), the court was seized with the situation to decide whether the post of lecturer in a subject in the college was admissible to the college at the time of his appointment and whether said appointment is to receive the validation under the provision of Validation Act, 1998. The stand of the State therein was that since the petitioner was appointed at the time in the college which though was an aided, the +3 decree wing having been opened later was not aided one and accordingly the work load of the college for approval of any post stands to be adjudged taking into account the +3 decree wing work load only and therefore in such cases, the provision of Validation Act, 1998 would not come into play to save the appointment of the petitioner as lecturer in the said post. It was further pleaded that the +3 decree wing having been declared an aided institution by the Government on 01.01.2004, the same is just and legal. In the rejoinder affidavit filed therein, the college was stated to be a composite college with +2 and +3 decree wing followed by assessment of the work load in accordance with rule 4 of the G.I.A. Order, 1994. So it was stated that the post was admissible and as there was justification in view of the work load, the governing body had created the post and appointed the petitioner therein and it was further pleaded that similarly situated colleges prior to that had been brought into the fold of Grant-in-Aid and such appointees being extended with the benefit of Validation Act, 1998. 9. 9. The Division Bench of this Court in the case has taken the following view:- “In this connection, we have looked into the provisions of Grant-in-Aid Order, 1994. Rule 4 of the Grant-in-Aid Order prescribes three categories of institutions in existence when 1994 Grant-in-Aid Order came into force. This order, inter alia prescribes that Non-Government Educational Institutions and approved posts in such institutions which have received Grant-in-Aid from the Government or in respect of which Grant-in-Aid has been sanctioned by the Government prior to commencement of Amendment Act are to be treated as Category-I institution. It further stipulates that other posts in Non-Government Educational Institutions covered under Category-I (1) which were admissible on the basis of work load and prevalent yardstick had been filled up prior to commencement of the Amendment Act, but in respect of which no Grant-in-Aid had been sanctioned are also covered under Category-I intuition. It is pertinent to note here that the Amendment Act came in the year 1994. Rule 9 (c ) of the Grant-in-Aid Order, 1994 categorically states that the work load to be determined for admissibility of a post by computing the total work load on account of Decree Course and Higher Secondary course in all the streams conducted in that institution. In view of this provision of the Grant-in-Aid Order as amended above, as the petitioner’s college, i.e., Tangi Mahavidyalaya was having +2 and +3 stream with the approval of the State Government and the institution being an aided institution before the Amendment Act came into force and further since the petitioner was appointed before coming into force the Amendment Act and also the existence of the Grant-in-Aid Order, 1994 there can be no dispute, in our view, that Tangi Mahavidyalaya would come within the ambit of Category-I institution and therefore, the admissibility of the post in any discipline are to be adjudged computing the work load of both +2 and +3 stream. It was submitted by learned counsel for the petitioner and it is also revealed from Annexure-17 that the 2nd post of Lecturer in English is admissible and the same was justified to the college. This stand has been taken in the writ petition and the same has nowhere been denied by O.P.No.2 in the counter affidavit nor in the additional affidavit filed in reply to the rejoinder affidavit of the petitioner. This stand has been taken in the writ petition and the same has nowhere been denied by O.P.No.2 in the counter affidavit nor in the additional affidavit filed in reply to the rejoinder affidavit of the petitioner. From a reading of the affidavit filed by O.P.No.2 it is apparent that O.P.No.2 has not taken into account the work load of +3 stream and has rejected the claim of the petitioner only on the basis of the work load of +2 wing. This, in our view, and in the facts and circumstances is not sustainable in the eye of law. Rather, the 2nd post of Lecturer in English was admissible and it was justified in the college in question when the petitioner was appointed and for that the Order of the Government under challenge, vide Annexure-16 appears to be incorrect and the same has been passed without taking into consideration the aforementioned facts and without application of mind.” 10. Discussing the next submission, following view has been expressed:- “The second plank of argument that was advanced on behalf of the petitioner is about validating the services of the petitioner in pursuance to the Validation Act, 1998. On a bare reading of the said Validation Act, it is found that the Lecturers of aided colleges who have been appointed on temporary basis against the approved and admissible post by the concerned Governing Body during the period between 1.1.1985 and 31.12.1992 and are continuing as such having the requisite qualification prescribed to hold such post and are in the pay roll of the concerned college against the said approved and admissible post, as the case may be, shall be deemed to have been validly and regularly appointed. In the case at hand, as we find undisputedly, when the petitioner was appointed the college was an aided college. The petitioner was admittedly appointed on 1.11.1991 having the requisite qualification. She is continuing in the said college right from her date of appointment till date and she is in the pay roll of the college. The post to which she was appointed is an admissible post as we have observed earlier in the preceding paragraphs. In that view of the matter, she fulfils all the requirements necessary for attracting the provisions of Validation Act. The post to which she was appointed is an admissible post as we have observed earlier in the preceding paragraphs. In that view of the matter, she fulfils all the requirements necessary for attracting the provisions of Validation Act. We have also found that O.P.No.1 has not considered the case of the petitioner in its proper perspective and has rejected her case on 2.5.2001 under Annexure16.” 11. The above judgment rendered by this Court had been carried before the Apex Court in Civil Appeal No.(s) 2401 of 2011 at the behest of the State of Orissa and that has been dismissed finding no reason to interfere. 12. This Court in the case of Akshya Kumar Mohanty V. State of Orissa and others, 1997(II) OLR 136, upon consideration of various notifications of the Government with regard to justifiability of a 2nd post in a subject came to the conclusion that where the number of classes per week in a subject is 29 or more, the 2nd post stands justified. 13. The case of M/s. Bilkesh Parveen (supra) having been referred to in the case of State of Orissa v. Sarada Prasanna Mohapatra, (supra) under similar factual setting of the cases, this Court therein refused to interfere with the order of the learned State Education Tribunal rendered in favour of the claimant-petitioner finding their cases to be covered under the Validation Act, 1998 holding the posts to be admissible with effect from 17.10.1998, the date covered under the Validation Act, 1998 followed by entitlement of benefit of Grant-in-Aid under section 3 of the said act. On the face of the above settled position in the facts and circumstances, I find the submissions of learned counsel for the petitioner have got full force and as such acceptable. 14. Keeping in mind, the provision of law holding the field as well as the settled position as expressed in above noted decisions of this Court and upon examination of the facts and circumstances of the instant case, I am of the considered view that the order passed by the learned State Education Tribunal on 13.02.2012 in GIA Case No. 255 of 2010 is unsustainable. Therefore, while allowing this appeal, I set aside the said order and direct opposite party nos. Therefore, while allowing this appeal, I set aside the said order and direct opposite party nos. 1 and 2 to accord approval to the appointment of the petitioner as lecturer in Economics in the third post with effect from the date of his appointment i.e. 20.09.1991 in consonance with the provisions of Validation Act, 1998 entitling him to the benefits as provided under sub-section (2) of Section 3 of the said Act, 1998 with effect from the date of commencement of said Validation Act, 1998 and as stipulated therein. The opposite party nos. 1 and 2 are hereby directed to implement this order within a period of four months from the date of communication of this judgment. The appeal is accordingly allowed and in the circumstance without cost. Appeal allowed.