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2018 DIGILAW 648 (ORI)

State of Odisha v. Shashadhar Biswal

2018-07-09

D.DASH

body2018
JUDGMENT The State by filing this Appeal under Section 24 (C) of the Orissa Education Act, 1969 (the Act for short) challenging the order dated 07.02.2014 passed by the learned State Education Tribunal, Bhubaneswar in GIA Case No.463 of ;2012. 2. The facts necessary for disposal of this appeal are as under :- Hindol College, Kajuriakata in the district of Dhenkanal is a Category –I College in respect of its +2 Wing which was admitted to the Grant-in-Aid fold prior to 01.06.1994.The +3 Degree Wing of the said College was notified to receive Grant-in-Aid w.e.f. – 01.06. 1994 as per the Grant-in-Aid Order, 1994 (for short, called ‘the GIA Order, 1994) vide Government notification dated 21.08.1999 and for its Category-Ii College. The respondent No.1 joined in the College on 01.09.1989 as a Lecturer in Political Science (2nd post). Although the name of respondent No.1 was proposed for approval of his service as above, it was turned down as after verification, the respondent No.1 was not found could have completed five years of valid qualifying service as on 01.06.1994 for grant benefit under the Grant-in-Aid Order, 1994. 3. It may be mentioned here that at the time of appointment of respondent No.1, as per the prescribed qualification, instead of ;54% of marks in Post Graduate level in the relevant subject, he had secured 51.75%. However, the Government in the Department of Higher Education relaxed the minimum qualifying marks at the Post Graduate level to 48% for the period commencing from 08.04.1991 to 10.06.1997 for the Junior Lecturer as per OES (CB) Rules, 1991.The respondent No.1 thus acquired the eligibility as such w.e.f. 08.04.1991.Computing the period of service from that date which is the deemed date of valid joining in service onwards, the five years of qualifying service is getting completed as on 01.06.1999. So it is stated by the appellant that the respondent No.1 has not completed five years of qualifying service by 01.06,1994 so as to be entitled to the benefit of the GIA Order, 1994. So it is stated by the appellant that the respondent No.1 has not completed five years of qualifying service by 01.06,1994 so as to be entitled to the benefit of the GIA Order, 1994. It is also stated that said GIA Order, 1994 stood repealed by Grant-in-Aid Order, 2004 (for short, called ‘the GIA Order, 2004) and in those cases where the notification under Grant-in-Aid Order 1994 has not been issued earlier for unavoidable reasons or non-submission of required documents within the schedule date, those cases were considered for notification and approval for eligible posts to get extension of block Grant @ 100% from 01.02.2004 and the eligible employees of such left out colleges were considered for approval under GIA Order, 2004. Further Government introduced Grant-in-Aid Order, 2009 (for short called ‘the GIA Order, 2009) and under the scope and ambit of the same, the left out eligible employees of 488-Category aided Colleges against admissible post by 01.06.1998 (01.06.2007 in case of colleges situated within the educationally backward district/women’s colleges) have come to be governed and accordingly they have approved to receive block grant as per GIA Order 2009 w.e.f. 01.02.2009. It is further stated that since respondent No.1 was a left out employee whose valid date of joining against the post of Lecturer in Political Science in the College is 08.04.1991 in view of relaxation in the percentage of marks at the P.G. level as eligible qualification, his service has been rightly approved against such post of Lecturer in Political Science for extension of block grant as per GIA Order, 2009. 4. The Tribunal be moved by the respondent No.1 under Section 25-B of the Act has allowed the prayer of the respondent No.1 by directing the appellants to approve the service of the respondent No.1 in terms of GIA order, 1994 and release all consequential benefits as admissible to him not w.e.f. 08.04.1996 5. In this appeal, the appellants had mainly taken the following grounds :- (B) For that, the impugned order/judgment of the learned Tribunal is illegal not being in consonance with the provision as set forth in the Grant-in-Aid Order, 1994 which stipulates that an employee in a Non-Governmental aided College is entitled to get the benefit of Grant-in-Aid, if he/she completes five years of qualifying service against an approved/admissible post as per yardstick by 01.06.1994. But in the present case, the respondent No.1 although was appointed by the Governing Body against 2nd. Post of Lecturer in Political Science on 01.09.1989 and that the post is admissible to the College during the session 1989-90, the said respondent was an under qualified Lecturer securing 51.79% of marks at his Post Graduate Examination in the concerned subject by then. Further, the said respondent accrued eligibility only on 08.04.1991 when the Government in Higher Education Department relaxed the aforesaid qualifying percentage of marks at Post Graduate level to 48% which continued for the period from 08.04.1991 to 10.07.1996.As a matter, in accordance with the provisions laid down at paragraph 9-(B) of the Grant-in-Aid Order, 1994, the aforesaid post completed five years of valid service as on 08.04.1996 to become eligible for Grant-in-Aid. It is a fact that the Government in principle have decided not to extent Grant-in-Aid to any post or any person accruing eligibility after 01.06.1994. Hence, allowing Grant-in-Aid to the respondent No.1 w.e.f. 08.04.1996 which is beyond cutoff date ahead by the Government would bring a breakthrough in the settled provision of law. But, the learned Tribunal without appreciating such essence has erroneously passed the impugned orders directing the appellant No.1 & 2 to approve his appointment and release of Grant-in-Aid with effect from 08.04.1996 as per Grant-in-Aid Order, 1994 which needs to be set aside. (C) For that, the learned Tribunal has misconstrued the import of mandatory condition ahead by the Government as a mater of policy decision sticking up 01.06.1944 as the cutoff date for the newly filled up posts to complete five years of valid qualifying service to get their admittance in the fold of Grant-in-Aid and has allowed the Grant-in-Aid application preferred by the respondent No.1 directing the State Appellants to approve his appointment for release Grant-in-Aid w.e.f. 08.04.1996 as per Grant-in-Aid Order, 1994 in the absence of an enabling provision for award of such relief and has exercised power beyond his prerogative. In view of the same, the judgment of the same, the impugned judgment is liable to be set aside. 6. Learned Additional Government Advocate submitted that respondent No.1 having joined in service on 01.09.1989 having not got required percentage of marks in the subject at the Post Graduate level, said date cannot be taken to be the valid date of his joining in service. 6. Learned Additional Government Advocate submitted that respondent No.1 having joined in service on 01.09.1989 having not got required percentage of marks in the subject at the Post Graduate level, said date cannot be taken to be the valid date of his joining in service. Further he submitted that in view of the subsequent relaxation of percentage of marks at the Post Graduate level by the Government, the respondent No.1 being treated to have been validly appointed as on the date of notification i.e. 08.04.1991, in order to get the benefit under the GIA Order, 1994 as on 01.06.1994 he is not having five years of completed qualifying service as required by the said order and he when has completed five years of qualifying service as on 08.04.1996, deeming his appointment to have been made on 08.04.1991, he has been rightly extended with the benefit under the GIA Order, 2009 which he was not so possessing at the time of relevant time of approval of his service for being admitted under the fold of GIA Order, 1994. In support of the submission, he relies upon the decision of the Apex Court in case of State of Orissa & others vrs. Prabhabati Padhiary in civil Appeal No.796 of 2008. It is further submitted that the GIA Order, 1994 having been repealed w.e.f. 01.01.2004, there remains no scope for consideration of the claim of respondent No.1 in accordance with the said repealed GIA Order, 1994 and it is not permissible in the eye of law. 7. Learned Counsel for the respondents in reply submitted that the view taken by the learned Tribunal is in consonance with law and that on proper construction of the provisions contained in the GIA Order, 1994.According to him, the learned Tribunal has rightly held the respondent No.1 to be entitled to the benefits thereunder as claimed. He further submitted that recently the State Government has conceded before the Hon’ble Supreme Court in a series of cases, even in the cases where the institutions were established from 1994 to release Grant-in-Aid instead of Block Grant. The Colleges which were notified under the GIA Order, 2008 i.e. 662 category of Colleges have been extended wih the grant-in-aid by modifying earlier notification/ approval order for block grant. The Colleges which were notified under the GIA Order, 2008 i.e. 662 category of Colleges have been extended wih the grant-in-aid by modifying earlier notification/ approval order for block grant. In the circumstances, the reasoning and grounds taken in the appeal that the State Government has not extended the benefits of Grant-in-Aid beyond 01.06.1994 are irrelevant, unreasonable, arbitrary and discriminatory. 8. It may be mentioned here that though the appellant-State very much rely on decision of the apex Court in case of State of Orissa and others vrs. Prabhabati Padhiary in Civil Appeal No.796 of 2008, the fact remains that in view of the observation of the Apex Court that the order shall not stand on the way, if Smt. Padhiari becomes subsequently eligible for whatsoever reasons and that at a later point of time, the State Govt., may consider her case; on her subsequent move in GIA Case No.492 of 2011, those benefits have finally been allowed in her favour and the grant in aid has accordingly been released. 9. In view of above contentions, this Court is called upon to take up for consideration the repeal and saving clause of the subsequent Grant-in-Aid Order for their proper construction and accordingly, the application to the instant case. The said Clause 4 of the Grant-in-Order while repealing GIA Order, 1994, makes a saving of the purposes mentioned in sub-para (1) of para 3 of said order of 1994.This saved para 3 (1) concerns with the admissibility of Grant-in-Aid Order, 1994.A careful reading of those leads to a conclusion that the said repeal cannot come into play in respect of those educational institutions, which have already been notified eligible by01.06.1994 or to be so notified as Aided Educational Institutions as per the Grant-in-Aid order, 1994. In that view of the matter, adverting to the facts of the case in hand, the institution here having received the permission and recognition during academic session 1989-90, in view of completion of the requisite period of its running comes for being notified as such. Therefore, the submission of learned Addl. Government that by virtue of said repeal of GIA Order, 1994 the respondent No.1’s claim to the benefits as provided thereunder does not stand for acceptance, and has no force. The degree wing of the College since its beginning has completed five years by 01.06.1994. Therefore, the submission of learned Addl. Government that by virtue of said repeal of GIA Order, 1994 the respondent No.1’s claim to the benefits as provided thereunder does not stand for acceptance, and has no force. The degree wing of the College since its beginning has completed five years by 01.06.1994. The notification though had not been done under that GIA order, 1994, yet and that is a continuing process as provided in para 7 (2) and 9 (3) of the said Order of 1994 being further clarified under letter dated 01.06.1996 issued by the Dept. Of Higher Education, Odisha which has been very much quoted by the Tribunal in its order. In the above premises, I do not find any illegality or infirmity in the order of the learned Tribunal in allowing the claim of the respondent No.1 holding that he is entitled to receive the grant-in-aid w.e.f. 01.06.1996 as per GIA Order, 1994 and for that the earlier approval order dated 16.01.2010 calls for modification 10. Furthermore, in view of the express provision in the statute under Clause 9 (2) (B) (ii), para-7 (20, para-9 (3) of Orissa Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 read with repeal and saving clause vide para-4 (1) of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) grant-in-Aid Order, 2004 and para-23 of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 along with para-(ii) of Government Letter No.IV-HEG-84-96/39446/HE, Dt. 1.6.96 a clarification in that regard, it is as clear as noon-day that they had right was accrued in favour of the petitioner for receiving GIA Order, 1994 and the action of the appellant in releasing block grant under GIA Order, 2009, instead of releasing Grant-in-Aid under GIA order, 1994 is not sustainable in the eye of law. In the above premises, although the order of Tribunal falls short of required/desired discussion, yet no such fault is found with the ultimate decision in allowing the claim of respondent No.1 holding him to be received Grant-in-Aid in terms of Grant-in-Aid Order, 1994 w.e.f. 08.04.1996, suitable modifying earlier approval order faulted. 11. In course of hearing the respondent No.1 has cited that recently in view of the order in a batch of cases before the Apex Court, the institutions notified under GIA Order, 2008 have been extended with the benefits admissible under GIA Order, 1994. 11. In course of hearing the respondent No.1 has cited that recently in view of the order in a batch of cases before the Apex Court, the institutions notified under GIA Order, 2008 have been extended with the benefits admissible under GIA Order, 1994. In this connection he has placed the copy of the order of the Apex Court in Civil Appeal No.2403 of 2017 and 62 others in batch as well as the order of clarification in I.A. No.2 of ;2017 and a large number of Govt. orders in carrying out said orders in so far as those similarly situated institutions and the employees are concerned. When, the State Govt. has already extended the benefit to several similarly situated institutions and the employees of said institutions have already been allowed with the benefits in consonance with the GIA Order 1994, it does not stand to reason that in so far as the respondent No.1 is concerned, he would not be treated as like them, being not granted with the benefits as have been extended to them, which is clearly discriminatory, arbitrary and unreasonable. 12. In the result, the appeal being devoid of merit stands dismissed. No order as to cost. Appeal dismissed.