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2017 DIGILAW 15 (ORI)

Rajashree Mohanty v. State of Orissa

2017-01-02

D.DASH

body2017
JUDGMENT This appeal under Section 24-C of Orissa Education Act 1969 has been filed challenging the order dated 27.05.2011 passed by the learned State Educational Tribunal in GIA Case No. 16 of 2008. 2. Facts necessary for the purpose may be stated hereunder:- With the introduction of the Psychology as a subject and opening of the said Department in Nayagarh Praja Mandala Mahila Mahavidyalaya, one Manorama Mohapatra was appointed in the 1st post of Lecturer in Psychology on 19.08.1983. In course of time due to increase in roll strength in the said Department and opening of +3 course in the college on 30.06.1989, the Governing Body made and advertisement inviting application for appointment in the second post of Lecturer in the said Department. One Mina Kumari Uttarkabat being finally selected was appointed as against the 2nd post of lecturer in the said Department on 04.01.1990. On 01.08.1989, said Manorama Mohapatra went on leave on personal ground. As the second post of lecturer was not then in place, upon request of the Secretary of the Governing Body, the appellant came forward to take up some extra classes for the students prosecuting + 2 course with the said subject in the College. The Secretary of the Governing Body having made request, the appellant in turn submitted an application before the Principal Itamati College of Education and Technology, Itamati, where she was then taking classes on the said subject as a lecturer, it is stated that the Secretary of the Governing Body had then given her the assurance to regularize her service against the 1st post of lecturer in the said Department in the college. It is stated that accepting such assurance, the appointment came and joined and therefore did not apply for the second post of lecturer in the Department for which one Mina Kumari Uttarakabat was appointed on 04.01.1990. When Mina Kumari Uttarakabat went on leave on 07.01.1990, the respondent no. 5 was appointed by the Governing Body against the said leave vacancy. It is stated that the appointment of respondent no. 5 has not been regularized, whereas her appointment has been regularized on 05.10.1990, although no decision had been taken by the Governing Body relating to her appointment against any specific post. 5 was appointed by the Governing Body against the said leave vacancy. It is stated that the appointment of respondent no. 5 has not been regularized, whereas her appointment has been regularized on 05.10.1990, although no decision had been taken by the Governing Body relating to her appointment against any specific post. It is further stated that the Director, Higher Education placed one Harihar Mishra on transfer from Nayagarh College, in the said college as against the 1st post of lecturer. So, her case is that since she being applinted w.e.f. 10.11.1989 and regularized on and from 05.10.1990, she has to be presumed to have holding second post of lecturer in Psychology in the college. It is alleged that the Governing Body has illegally approved the appointment of respondent no. 5 against second post of lecturer in Psychology and recommended her name for approval of service and release of Grant-in-Aid. Initially the appellant had filed OJC No. 1649 of 1999 before this Court and thereafter in view of the observation made therein she approached the Tribunal. 3. The respondent no. 3 in the counter stated that the appellant was appointed as full time lecturer on 05.10.1990 and till then she was taking extra classes in +2 wing while continuing to work as the lecturer in Psychology in Itamati College of Education and Technology. It is stated that respondent no. 5 had been appointed as against second post of the lecturer in the Department. The respondent no. 5 in her counter has averred that pursuant to the advertisement for filling of the second post of lecturer in Psychology, she was selected through due process and then was appointed and has been continuing as such. Thus, she asserts that the Governing Body of the college has rightly found her to be senior to the appellant and has thus rightly recommended her case for consideration of approval of her appointment and consequential release of Grant-in-Aid which in fact have been made later. 4. The learned Tribunal has rightly as it appears formulated the point for determination as regards the appellant’s entitlement to the approval of her appointment and consequential release of Grant-in-Aid as against 2nd post of Lecturer in Psychology in the college. Then delving upon the said point, the appellant’s case has not been accepted and on the other hand, the respondent no. Then delving upon the said point, the appellant’s case has not been accepted and on the other hand, the respondent no. 5 has been found to have been duly appointed as against the 2nd post of lecturer in Psychology in the said college and as such found her case to be fit for approval of appointment and consequential release of Grant-in-Aid when occasion so arises. This order is now called in question in this appeal. 5. Heard learned counsel for the appeal, learned Addl. Government Advocate as also learned counsel for the respondent no. 5. 6. Learned counsel for the appellant submits that the learned Tribunal has erred both in fact and law by not accepting the case of the appellant who was an earlier appointee in the post of lecturer in Psychology in the college than the respondent no. 5 and when she has been continuing to serve the college as such since 10.11.1989, the learned Tribunal has committed grave error in giving the respondent no. 5 a march over the appellant in the matter of approval of service and consequential financial benefits. Learned Addl. Government Advocate supports the order of the learned Tribunal. According to him, when the initial appointment of the appellant was only for taking some extra classes in the department of the College, rightly her appointment has not been considered for approval of service taking her joining from that date. Learned counsel for the respondent no. 5 contends that the very foundation of the claim of the appellant is not legally tenable and therefore the learned Tribunal has rightly rejected her application under Section 24-B of the Act which is not liable to be interfered with. 7. At the outset, it may be mentioned that the appellant’s claim before the Tribunal in her application under Section 24-B of the Act is for regularization of her service against the 2nd post of lecturer in Psychology in the college with consequential by quashment of approval of service of respondent no. 5 and her entitlement to the financial benefits flowing therefrom. The very foundation of the claim of the present appellant is based upon her appointment by a letter given by the Secretary of the Governing Body of the college which is dated 10.11.1989 which has been quoted by the learned Tribunal in the order itself. 5 and her entitlement to the financial benefits flowing therefrom. The very foundation of the claim of the present appellant is based upon her appointment by a letter given by the Secretary of the Governing Body of the college which is dated 10.11.1989 which has been quoted by the learned Tribunal in the order itself. This clearly shows that the appointment of the appellant was not at the point of time by following due process in that regard. She was merely asked to take some extra classes in psychology to the students of +2 wing of the college, when she was discharging her duty as a lecturer as such in Itamati College of Education and Technology. Admittedly, her service has been regularized w.e.f. 05.10.1990 which of course is subject to the availability of the post. Undeniably, the respondent no. 5 has been appointed on 24.01.1990 through due process of selection and since as against the 1st post of lecturer, the Director, Higher Education had already placed a person on transfer, the service of the respondent no. 5 is now taken against the 2nd post. The Governing Body has made necessary resolution to that effect and thereafter consequential actions in that regard have been followed up. The Governing Body had resolved to confer seniority of respondent no. 5 on 08.11.1989 and about 10 years thereafter as it appears the challenge has been made. When the appellant’s appointment is not on full time basis against a post since 10.11.1989 and it was only to take some extra classes in the Department of the College and which has later on been regularized w.e.f. 05.10.1990, her claim has against the respondent no. 5 who has been appointed on 24.10.1990 through due selection process pursuant to the advertisement made in that regard has rightly been declined to be accepted by the learned Educational Tribunal declaring the appellant to have a march over respondent no. 5 in the matter of approval of appointment as also to the consequential flow of benefits therefrom. 8. For the aforesaid discussion and reasons, the appeal is hereby dismissed. No order as to cost. Appeal dismissed.