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2018 DIGILAW 776 (ORI)

AMBIKA PRASAD RATH v. STATE OF ODISHA

2018-08-29

S.N.PRASAD

body2018
JUDGMENT : S.N.Prasad, J. - The instant appeal is preferred under the provisions of section 24-C of the Orissa Education Act, 1969 which confers power upon this Court to entertain an appeal against an order passed by the Orissa Education Tribunal under the provisions Section 24-B of the Orissa Education Act,1969. The appeal is against the judgment dated 11.12.2017 passed by the State Education Tribunal, Bhubaneswar in G.I.A.Case No.851 of 2012 whereby and where under the claim of the appellant to approve his appointment as U.D.Clerk w.e.f. 1.6.85 and Head Clerk w.e.f. 1.6.1989 on promotion with release of salary in higher scale both current and arrear has been rejected.. 2. Brief facts of the case of the appellant is that he has been appointed in the institution known as D.G.B.K. Mahavidyalaya, Deputy Tota, Kasarada, District-Cuttack as Lower Division Clerk on 20.5.1981 and joined there on 31.5.1985, while the appellant was working, since the post of Senior Clerk was justified w.e.f. 1.6.1985 the Managing Committee of the Governing Body of the college promoted him to the post of Senior Clerk vide office order dated 1.6.1989, the petitioner thereafter promoted to the post of Head Clerk since the post of Head Clerk was justified as per the yardstick, the said promotion to the post of Head Clerk was given vide order dated 1.2.1995 w.e.f. 1.6.1989 by the Secretary of the Governing Body of the College. The promotion given to the appellant to the post of Head clerk has been confirmed and thereafter the college has become aided educational institution and as such his appointment as Lower Division Clerk was approved by the Government vide letter dated 8.2.1990 w.e.f. 1.6.1988. The promotion given to the appellant to the post of Head clerk has been confirmed and thereafter the college has become aided educational institution and as such his appointment as Lower Division Clerk was approved by the Government vide letter dated 8.2.1990 w.e.f. 1.6.1988. The Government has enacted Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-In-Aid Order,1994 and in pursuance to such order, proposal in prescribed form-B was submitted by the Governing Body of the College for approval of his promotion to the post of Senior Clerk and Head Clerk w.e.f. 1.6.1985 and 1.6.1989 respectively which was duly been verified by the Director and recommended it to the Government showing the appellant eligible to receive grant-in-aid w.e.f. 1.6.1985 as senior Clerk and w.e.f. 1.6.1989 as Head Clerk respectively but irrespective of the recommendation by the Director, Higher Education no step whatsoever has been taken by the Government for approval of his appointment and release of grant-in-aid, having no other alternative the appellant has preferred writ petition being O.J.C. No.653 of 2002, this Court has disposed of the writ petition with direction to the Government to consider the case for approval and release of grant-in-aid to the post of U.D. Clerk and Head Clerk keeping the recommendation of the Assistant Director into consideration but the competent authority vide order dated 25.5.2004 rejected the claim of the appellant on the ground that the Government is passing through serious financial crisis which has been assailed by the appellant by invoking the provisions of section 24-B of the Orissa Education Act which has been registered as G.I.A.Case No.851 of 2012 before the Orissa Education Tribunal but the same has also been rejected against which the present appeal has been filed. The appeal has been filed on the ground that the Tribunal has not appreciated the proposition of law that prior to approval of appointment of the lower post(LDC) the promotion of the appellant to higher post was justified since as per the rules the Governing Body being the employer is competent to fill up the higher promotional post by giving promotion if the post is justified as per the yardstick and since the post was created as per the prevailing yardstick of the year 1977, hence the Governing Body being the competent authority has granted promotion to the appellant to the post of Senior Clerk and Head Clerk. The Tribunal has failed to appreciate the law and the provision of Rule 8(2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules,1974, hereinafter referred to as "the Rules,1974" has not been complied with, hence the appellant is entitled to get the aforesaid benefit. 3. The matter has been listed under the heading for "Fresh Admission". Mr.B.P.Tripathy, learned Additional Government Advocate, instead of asking time for filing counter affidavit, has submitted that he will argue the case on legal proposition and he is not required to file any counter affidavit. He submits that since the order passed by the Odisha Education Tribunal in G.I.A. Case No.851 of 2012 is under challenge, hence he is ready to defend the said order on the basis of the factual aspects which is on record and as per the legal position and as such Mr.Tripathy has argued the case vehemently by defending the order passed by the Tribunal by submitting that there is no infirmity in the aforesaid order mainly for the reason that the appellant has been appointed L.D.Clerk on 20.5.1981 and joined the said post on 31.5.1981, his services were approved as Junior Clerk w.e.f. 20.7.1988 vide order No.7846 dated 8.2.1990 but before the aforesaid approval the service of the appellant as Junior Clerk for getting benefit of grant in aid as per the Grant-in-Aid Order,1994 who has been promoted to the post of Senior Clerk and thereafter as Head Clerk w.e.f. 1.6.1985 and 1.6.1989 respectively, is not permissible for the reason that granting promotion from Lower Division Clerk to higher cadre is to be made on substantive post, there is no question of giving such incumbent promotion to the higher post, taking into consideration that, the Tribunal has passed order rejecting the claim of the appellant on the ground that his service as Senior Clerk and Head Clerk w.e.f. 1.6.1985 and 1.6.1989 respectively is not fit to be approved and as such denied the claim of benefit of grant in aid under the Grant-in-Aid order,1994. He submits that provision of Rule 8(2)(b) of the Rules,1974 is applicable as because Rule 8(2)(b) of the aforesaid Rules provides that the vacancy in a post, carrying higher scale of pay, is filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a college, but here before filling up the posts of Senior Clerk and Head Clerk, the said posts have not been approved and as such the Tribunal taking note of the provision, has rejected the claim of the appellant and as such there is no infirmity in the order impugned. He has further submitted that even though provision of Rule 8(2)(b) of the Rules,1974 is not applicable but since the appellant claiming benefit of grant in aid under the Grant-In-Aid Order, 1994 and as such he is supposed to be eligible to get the benefit under the provisions of the Grant-InAid Order,1994. He has relied upon the provisions of para Nos.14,15 and 16 of the Grant-In-Aid Order,1994 in support of his argument and defended the decision taken by the Tribunal rejecting the claim of the appellant. In response, Mr.Mahapatra, learned counsel for the petitioner has submitted that there is no question of approval of service of the appellant in pursuance to the provisions of Rules,1974 for the reason that the college in question has been brought under the fold of the provision of Section 3(b) of the Orissa Education Act and since appointment/promotion has been made as Junior Clerk, Senior Clerk or Head Clerk is prior to the order 1990 hence the provision of Rules,1974 will not be applicable since the provisions of the Rules,1974 is existed to the aided educational institution and whatever promotion has been given to the appellant by the competent authority who happens to be Managing Committee of the Governing Body, hence there is no question of approval of services of the appellant as per the provisions of Rules,1974. He has further submitted that the Tribunal in para-6 has observed that unless and until the promotion of the appellant to the post of Senior Clerk is approved, the question of approval for promotion to the post of Head Clerk does not arise at all but subsequently in para-7 it has been observed by the Tribunal that granting of promotion to the next higher post prior to approval of appointment of the appellant as Junior Clerk is just and proper and the Tribunal is contrary to the observations made at para-7 and on this ground only the order impugned is to be quashed. 4. Heard learned counsel for the parties, appreciated the rival their rival submission, gone through the pleadings made in the memorandum of appeal, the impugned judgment and the legal position. This Court, before appreciating the arguments advanced on behalf of the parties, thinks it proper to deal with certain provisions of law. In the State of Odisha prior to enactment of Orissa Education Act,1969 the education system was governed by executive instructions and as such the Government has taken decision to codify the educational law, hence keeping that aspect of the matter into consideration, Orissa Education Act,1969 has been enacted upon. Under the scope of codifying the educational system in the State, one Rule has been enacted upon i.e. The Odisha Education(Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules,1974. The said Rule has been made applicable to Primary Schools and Schools established and maintained by Municipalities and N.A.Cs. and the Rules came into force w.e.f. 1.4.1975 being published under Odisha Gazette Extraordinary No.480 of 1975. A provision has been incorporated under the provisions of Rule 8 wherein under the provisions of sub-rule(2)(b) which is being referred herein below: "the vacancy in a post, carrying higher scale of pay, is filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a college, by an employee of the same institution who possesses the prescribed qualifications and experience and whose performance in respect of the post he holds, has been found satisfactory. Such appointment shall be treated as regular appointment from the date, the same is filled up on ad hoc basis by the Managing Committee or the Governing Body, as the case may be, in the event of its approval by the competent authority." The aforesaid rule provides prior approval of Government in case of a College and the concerned Director in case of an institution other than a college, the vacancy is to be filled up. The State Government, in order to develop the infrastructure and educational system of the State, has made a provision to give benefit of grant in aid to the private educational institutions if aided under the provisions of Section 3(b) of the Orissa Education Act,1969 subject to fulfilling conditions as provided under Section 7-C which has been amended by Odisha Act No.14 of 1993, the provisions of Section 3(b) and Section 7-C of the Orissa Education Act,1969 are being reproduced below: "Section 3(b)- Aided Educational Institution means private educational institution which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in-aid." "Section-7-C:- Grant-in-aid - (1) The State Government shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private Educational Institution in the State. (2) No order according permission or approval or recognition under this Act, whether prior to or after the commencement of the Orissa Education (Amendment) Act,1994, shall entitle any private educational institution to receive grant-in-aid. (3) Save as otherwise provided, no private Educational institution which has not been recognized by the State Government under this Act shall be entitled to receive any aid from the State Government. (4) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order any Court, no grant-in-aid shall be paid and no payment towards salary costs or any other expense shall be made to any private educational institution or for any post or to any person employed in any such institution after the commencement of the Orissa Education (amendment) Act,1994, except in accordance with an order or rule made under this Act. Grant-in-aid where admissible under the said rule or order, as the case may be, shall be payable from such date as may be specified in that rule or order or from such date as may be determined by the State Government: Provided that pending framing of such rule or issue of order the State Government may, without prejudice to such rule or order, direct that private educational institutions which were redceiving grant-in-aid and the posts in such educational institutions in respect of which grantin-aid was being released shall continue to be paid such amount as grant-in-aid as was being paid to them immediately prior to commencement of the Orissa Education (Amendment) Act,1994. (4-a) The grant-in-aid to be borne by the State Government on account of placement of a teacher in an aided educational institution receiving University Grants Commission scales of pay under the Career Advancement Scheme, shall be limited to the extent as may be admissible by computing the period of service rendered by him against an approved post with effect from the date of completion of five years of service against such approved post: Provided that nothing in this sub-section shall be construed as to affect the seniority or any other conditions of service of such a teacher. (4-b)- Notwithstanding anything contained in any judgment, decree or order of any Court to the contrary, any instructions issued, actions taken or things done on or after the 1st day of January,1986 in regardto matters provided in sub-section(4-a) shall be deemed to have been validly issued, taken or done as if the said sub-section were in force at all material points of time. (5) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any Court the following categories of private educational institutions shall only be eligble for consideration for payment of grant-in-aid. (a) Upper Primary Schools imparting instructions or course prescribed by the State Government in Standards or Classes VI and VII or Sanskrit Tolls and Madrasas imparting equivalent courses. (b) High Schools imparting instructions or course for High School Certificate Examination conducted by the Board of Secondary Education, Orissa or institutions imparting Madhyama Course of Sri Jagannath Sanskrit University and Madrasas importing equivalent course. (b) High Schools imparting instructions or course for High School Certificate Examination conducted by the Board of Secondary Education, Orissa or institutions imparting Madhyama Course of Sri Jagannath Sanskrit University and Madrasas importing equivalent course. (c) Higher Secondary Schools or junior Colleges imparting instructions or course for Higher Secondary Examination conducted by the Council of Higher Secondary Education,Orissa or institutions imparting Upasastri course of Sri Jagannath Sanskrit University and Madrasas imparting equivalent course. (d) Colleges imparting course for B.A., B.Sc, or B.Com. degrees of the Utkal, Berhampur and Sambalpur Universities and Shastri of Sri Jagannath Sanskrit University. (6) No educational institutions importing any other courses of studies except those provided in sub-section (5) shall be eligible for grant-in-aid from Government. Educational institutions established and/or managed by Urban Local Bodies, Zilla Parishads, Panchayat Samitis and Grama Panchayats, Public Sector Undertakings or Companies or statutory bodies shall not be eligibele for grant-in-aid under this Act. (7) A Governing Body or Managing Committee desirous of availing the facility of grant-in-aid shall make an application for the purpose within such period and shall furnish such information and documents including audited statement of accounts of the institutions as may be prescribed. It shall furnish with the application an undertaking to the effect that grant-in-aid sanctioned for the purpose or meeting part or whole of the salary costs shall be disbursed direct to employees concerned and to refund any excess inadmissible payment that may have been made." The provisions of Section 7-C provides that the benefit of grant in aid is to be granted in pursuance to the enactment made by the State from time to time and subject to fulfillment of eligibility condition as per the aforesaid enactment if brought under the provisions of Section 7-C(4) of the said Act. The State Government, in order to extend benefit of grant in aid has decided to supersede the executive instructions which were prevalent for extending benefit of grant in aid in the year 1979 and 1981 under the name and style "The Odisha (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order,1994, hereinafter referred to as "the Grant-In-Aid Order,1994" wherein it has been provided to extend the benefit of grant in aid subject to fulfillment of conditions stipulated therein as per the provision of Section 7-C(4) of the Orissa Education Act,1969. In para-8 of the Grant-in-Aid Order,1994 it has been provided as quoted herein below: "A Non-Government Educational Institution which has been notified as an Aided Educational Institution shall not ipso facto be eligible to receive grant in aid such an institution will only be eligible to receive grant-in-aid towards salary cost of teaching and non-teaching posts in that institution which are eligi9ble to received grant-in-aid in accordance with the provisions of this order." It is evident from the foresaid provision that Non-Government Educational Institution even if notified as an aided educational institution shall not ipso facto eligible to receive grant in aid towards salary cost of teaching and non-teaching posts in that institution which are eligible to receive grant-in-aid in accordance with the provisions of the order. Paragraphs 9,14,15 and 16 of the Grant-In-Aid Order,1994 are quoted below for ready reference: "Para-9:- (1) A teaching or a non-teaching post in a Non-Government Educational Institution coming under category-1 in respect of which grant-in-aid has been sanctioned at any time prior to the commencement of the Amendment Act shall be deemed to be an approved post for the purpose of this order. (2) A teaching or a non-teaching post not covered by sub-para(1) of this para shall be treated as admissible and shall be eligible for approval subject to satisfying the following conditions:- (A) The post in respect of which approval is sought is a post in an educational institution which has been notified as an Aided Educational Institution. (B) (i) a post in a Government Educational Institution coming under category-1 for which no grant-in-aid has been sanctioned prior to commencement of the Amendment Act, if- (a) the post was admissible as per workload and yardstick prevalent prior to commencement of the Amendment Act. (b) has been filled up prior to that date; and (c) it has completed the qualifying period of five years or more, or of 3 years or more in case the institution is situated in backward area; (ii) a post in a Non-Government Educational Institution coming under category-II if- (a) The post was admissible as per workload and yardstick prescribed in this order vide Annexure-III. (b) Has been filled up prior to commencement of the Amendment Act, and (c) It has completed qualifying period of 5 years or more or of 3 years or more in case that institution is situated in an educationally backward district. (b) Has been filled up prior to commencement of the Amendment Act, and (c) It has completed qualifying period of 5 years or more or of 3 years or more in case that institution is situated in an educationally backward district. (iii) A post in an educational institution coming under category-III or a post in institutions coming under Category-I and II which do not come within clauses(B)(i) and (B)(ii) of sub-para(2) of this para, if- (a) The post is admissible as per workload and yardstick prescribed in this order; and (b) It has completed qualifying period of 5 years or more from the date of its admissibility or of 3 years or more in the case of an educational institution situated in an educationally backward district or is a Women's Educational Institution. (c) The workload for determining admissibility of a post shall be computed by taking into account the total workload on account of Degree course and Higher Secondary course in all streams conducted in that institution. If a question arises as to whether a post is admissible on the basis of workload and/or yardstick the decision of the Director thereon shall be final. (d) The workload shall 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 received and the number of candidates presented at the Higher Secondary or the Degree examination, as the case may be, from the same batch of students. (e) A post shall not be deemed to have completed the qualifying period unless- (i) The post has been filled up on full time basis during entire qualifying period. (ii) The post has not been filled up on honoraria or part-time basis at any time during the entire qualifying period. (iii) The post has been filled by person recruited in accordance with the procedure laid down in the Act, Rules and instructions as applicable at the relevant time. (iv) The post has been filled up at all times during the qualifying period by a person duly qualified to hold such a post. Note- Duly qualified means a person possessing the minimum qualification and experience prescribed for the post at the time when the post was admissible or on the date recruitment was made whichever is later. (iv) The post has been filled up at all times during the qualifying period by a person duly qualified to hold such a post. Note- Duly qualified means a person possessing the minimum qualification and experience prescribed for the post at the time when the post was admissible or on the date recruitment was made whichever is later. (f) If any post admissible on the basis of workload and yardstick has not been filled up in the manner indicated in Clause(e), the period during which the post was not filled up in such manner shall not count towards completion of the qualifying period. (g) An application has been made for approval of the post in the manner laid down. (3) Application for approval of posts which are eligible for approval by that date and application for notification of that educational institution as an aided educational institution shall be made simultaneously in Form-A. Application for approval of any post which becomes eligible for approval thereafter shall be made in Form-B prescribed in Annexure-II within three months from the date of its eligibility for approval. An application received in Form-B shall be deal with in the manner laid down in para 7. Where the Director is satisfied that a post is eligible for approval, he shall issue an order to that effect with prior concurrence of State Government indicating the date from which the post has been approved and the date of eligibility of that post to receive grant-in-aid. (4) (i) The date of eligibility of a post in respect of which grantin-aid has been sanctioned prior to commencement of the Amendment Act shall be the date on which the posts were admitted to the fold of grant-in-aid for the first time. (ii) The date of eligibility of a post for which grant-in-aid has not been sanctioned shall be the first day of the academic year following the date on which an approved post completes the qualifying period as applicable to the post. (ii) The date of eligibility of a post for which grant-in-aid has not been sanctioned shall be the first day of the academic year following the date on which an approved post completes the qualifying period as applicable to the post. Provided that the date of eligibility in respect of a post in an educational institution coming within category II and III shall in no case be date prior to 1.6.1994." "Para-14 :- (1) No grant-in-aid shall be admissible nor any grant-in-aid shall be paid for an approved post if it is held by a person on promotion unless the promotion of the person for whom grant-in-aid is claimed against that post has been approved by the Director or the Government, as the case may be. For purpose of this order, appointment of any person in a post carrying a scale of pay higher than the scale of pay of the post which he was holding shall be deemed to be a promotion. (2) For the purpose of this order, any promotion to or from a teaching post shall require the approval of the State Government and any promotion to or from a non-teaching post to another non-teaching post shall require the approval of the Director. (3) No approval to a promotion from a teaching post to another teaching post or placement under career advancement scheme shall be accorded after commencement of the Amendment Act except in accordance with the Government of Orissa, Education Department Resolution ZNo.9491/EYS, dated the 12th March,1990. Provided that any person who was validly receiving grant-in-aid on the basis of a scale admissible to a promotional post prior to commencement of the Amendment Act shall continue to receive grant-inaid on the same scale unless otherwise ineligible for the same." "Para-15 :- The Governing Body of a Non-Government Educational Institution notified or which applies for notification as an Aided Educational Institution shall furnish proposals in regard to the person or persons who is/are eligible to receive grant-in-aid against approved post or posts eligible to be approved from time to time indicting the full justification for the proposal. The Governing Body shall inter-alia furnish information on the following: (a) The full name and permanent address of the person/persons considered eligible grant-in-aid against each approved post or post eligible for approval; (b) Full particulars of the post against which he/she is eligible to received grant-in-aid including particulars relating to approval of the post; (c) Whether the person belongs to S.C. or S.T. (d) Date of Birth as recorded in the Matriculation Certificate or School Leaving Certificate in case of persons who are not Matriculates; (e) Educational qualification(s) indicating the year of passing of each examination name of the school/College attended the Board/Council'\/University which conducted the examination, Division or Class obtained, percentage of marks/grade obtained (attested true copies of all certificates and marks sheets shall be appended); (f) Date of appointment; (g) How selected with full particulars (copies of the advertisement issued inviting application, proceedings of meeting of the Selection Committee/Screening Committee etc. shall be furnished); (h) Whether any other person was appointed against that post at any time in the post with detailed reasons for their non-continuance in the post. In case of termination of services by the management or resignation full particulars along with copies of documents in support may be furnished. (i) Whether any other person has or may have a claim for receiving grant-in-aid against the post; if so, full particulars may be furnished." "Para-16 (1) On receipt of a proposal from the Government Body under para-15, the Director shall examine each case and if he is satisfied that the person proposed by the Governing Body is eligible to receive grant-inaid against an approved post he shall make an order to that effect. Where the Director is satisfied that a person proposed by the Governing Body is not eligible to receive grant-in-aid his decision shall be communicated to the Governing Body. For the purpose of satisfying himself as to eligibility of a person to receive grant-in-aid, the Director may call for any information, clarification or document that he considers necessary for the purpose. Where the Director is satisfied that a person proposed by the Governing Body is not eligible to receive grant-in-aid his decision shall be communicated to the Governing Body. For the purpose of satisfying himself as to eligibility of a person to receive grant-in-aid, the Director may call for any information, clarification or document that he considers necessary for the purpose. (2) No person shall be eligible to receive grant-in-aid against an aided post unless:- (i) he has been lawfully and validly appointed to that post by the competent authority in accordance with the law, rules and instructions in force at the time of his appointment and has been continuing to hold that post on and beyond the date of eligibility of the post to receive grant-in-aid; and (ii) he possessed educational qualifications and experience required holding that post at the time of his recruitment or on the date of the post was admissible to grant-in-aid, whichever is later." (ii) Thus it is evident that the benefit of grant-in-aid is to be extended in favour of any incumbent if he is found to be eligible as per the post in which the said benefit is being sought for. 5. On the basis of these legal position the fact of the case is to be seen i.e. the appellant admittedly was appointed as Lower Division Clerk on 20.5.1981 and joined in service on 31.5.1981 for a period of three months but allowed to continue in service, his appointment was approved as Junior Clerk w.e.f. 20.7.1988. It is not in dispute that the appellant has been given promotion as Senior Clerk w.e.f. 1.6.1985 and as Head Clerk w.e.f. 1.6.1989. The factual aspect has not been disputed that promotion granted to the appellant either as Senior Clerk or Head Clerk has been given while service of the appellant as Junior Clerk was not approved since it was approved vide order No.7846 dated 8.2.1990, promotion is to be given to the incumbent if holding substantive post since promotion means change of cadre and if the incumbent has taken birth in the cadre of substantive post he will have to be considered for promotion to higher cadre. It is also legal position that promotion cannot be granted to the incumbent who is holding the post not on the substantive post. It is also legal position that promotion cannot be granted to the incumbent who is holding the post not on the substantive post. On the basis of these principles, factual aspect of the case along with legal position as narrated above is to be examined. 6. Admittedly the appellant has been appointed by the Managing Committee as Junior Clerk on 20.5.1981 and joined the said post on 31.5.1981, the service of the petitioner as Junior Clerk has not been approved by the competent state authority and thereafter he has been given promotion to the post of Senior Clerk and Head Clerk w.e.f. 1.6.1085 and 1.6.1989 respectively. Further admitted position is that the services of the petitioner as Junior Clerk has been approved w.e.f. 20.7.1988 by virtue of the order No.7846 dated 8.2.1990, hence promotion which has been granted to the appellant as Senior Clerk and Head Clerk w.e.f. 1.6.1985 and 1.6.1989 respectively have been given when his service has not been approved as Junior Clerk since it has been approved w.e.f. 20.7.1988. The question which has been raised by the appellant that since the Managing Committee is the competent authority to appoint in pursuance to the yardstick, hence there is no requirement of getting approval of service by the Director on any other competent authority as per the provisions of the Orissa Education Act or any other related laws. It is not in dispute that the college came under the grant in aid fold w.e.f. from 8.2.1990 and prior to that the appellant has been appointed and promoted and thereafter approached to the authority for getting benefit of grant in aid in pursuance to the Grant-In-Aid Order,1994. Legal position cannot be disputed that if an incumbent is giving any financial benefits on the basis of certain principle of law it is incumbent to establish his eligibility in pursuance to the aforesaid legislation otherwise he will not be entitled to get financial benefit under the said legislation. The appellant is seeking benefit of grant in aid and for that he has sought for prior approval of his post of Senior Clerk and Head Clerk with effect from the date of promotion. The appellant is seeking benefit of grant in aid and for that he has sought for prior approval of his post of Senior Clerk and Head Clerk with effect from the date of promotion. As has been quoted herein above the provision of Section 7-C(4) of the Orissa Education Act, provisions of Paras 14,15 and 16 of the Grant-in-Aid Order,1994 and from bare reading of these provisions as contained therein, it transpires that grant in aid shall not be admissible to a person against the post if not approved by the Director or the Government, hence requirement for getting benefit of grant-in-aid as per the Grant-in-Aid Order,1994 is that the post upon which promotion is sought for is to be approved by the Director and as such the contention raised by the learned counsel for the appellant that the date when the appellant was appointed or promoted as Senior Clerk or Head Clerk, approval is not to be taken by the Director, is of having no substance in view of the stipulation made in para-14 of the Grant-In-Aid Order,1994. Thus, according to the considered view of this Court, approval as required is to be given by the Director for getting benefit of grant in aid and that is the reason the appellant has made application before the competent authority for approval of his promotion to the post of Senior Clerk or the Head Clerk, is required condition. 7. 7. Now the question arises as to whether the Director rejecting to approve promotion as Senior Clerk or Head Clerk is proper or not?, reason given by the competent authority has been taken care of by the Tribunal in the order impugned that the date when the appellant was promoted as Senior Clerk or Head Clerk, his service as Junior Clerk (LDC) was not approved and hence he is not entitled to get benefit of higher post which he has claimed by virtue of promotion given by the Governing Body or the Managing Committee of the institution. As has been referred to above that promotion means change of cadre and it can only be given if the incumbent is holding the post on substantive basis, substantive means a person is holding lien of the said post and that will give only after approval is to be given by the competent authority. As has been referred to above that promotion means change of cadre and it can only be given if the incumbent is holding the post on substantive basis, substantive means a person is holding lien of the said post and that will give only after approval is to be given by the competent authority. Here it is necessary to deal with the contention of the appellant that the appointing authority is the Managing Committee and as such appointment or promotion made by the Managing Committee will be said to be not on substantive basis by the competent authority, this submission has been made on the basis of the fact that the institution in question has came to grant-in-aid fold w.e.f. 8.2.1990 but that is not material in the facts and circumstances of the case and the relief sought for by the appellant which pertains to getting benefit of grant in aid as has been stated in the preceding paragraphs that financial benefits can be given if found eligible as per the provisions of law. Therefore, benefit of grant-in-aid only to be given if the service of the incumbent to the post is approved by the Director. The reason given by the Director or the Tribunal rejecting the claim of the appellant for giving benefit of Senior Clerk or the Head Clerk, according to my considered view, cannot be said to be improper for the reason that if in course of service the post has not been approved by the competent authority, the Managing Committee has given him promotion as Senior Clerk or the Head Clerk. Even if the Director, during the relevant time of engagement of the appellant, was not authorized to act as prescribed authority since the institution has come into the fold of Grant-in-Aid Order w.e.f. 8.2.1990 but the applicability and eligibility for appointment by way of direct recruitment or by way of promotion ought to have been communicated before the prescribed authority but no where it has been pleaded by the appellant and no material is before this Court that the Managing committee has ever put forth its proposal for making appointment of the appellant by way of promotion as Senior Clerk or Head Clerk. 8. 8. The appellant has raised further issue regarding non-applicable of the provisions of Rule 8(2)(b) of the Rules,1974. 8. 8. The appellant has raised further issue regarding non-applicable of the provisions of Rule 8(2)(b) of the Rules,1974. This Court has gone across the said provision of law as quoted above, the vacancy in a post is to be filled up with prior approval of Government in case of a College and the concerned Director in case of an institution other than a College. The contention raised by the appellant that the provisions of Rule 8(2)(b) of the Rules,1974 will not be applicable since the institution has come under the fold of aided educational institution w.e.f. 8.2.1990 but it is settled position of law that applicability of the Rules will be effective from the date when the institution has come into the fold of grant-in-aid. Admittedly, the institution in question has come to the fold of aided educational institution w.e.f. 8.2.1990 and hence from the date when the institution has come into the fold under the provisions of Rule 8(2)(b) of the Rules,1974 will be said to be applicable. Admittedly, the institution in question has come to the fold of aided educational institution w.e.f. 8.2.1990 and hence from the date when the institution has come into the fold under the provisions of Rule 8(2)(b) of the Rules,1974 will be said to be applicable. The order of promotion to the post of Senior Clerk has been given w.e.f. 1.6.1985 and Head Clerk on 1.2.1995, hence admittedly on 1.2.1995 the date of order of promotion to the post of Head Clerk, the institution in question has become aided and therefore as per the provision of Rule 8(2)(b) of the Rules,1974, prior approval ought to have been taken while promoting the appellant as Head Clerk, hence so far as applicability of the provisions of Rule 8(2)(b) of the Rules,1974 is concerned, the same is squarely applicable in the case of promotion of the appellant as Head Clerk, hence in absence of prior approval of the Director to fill up the post of Head Clerk by way of promotion held to be not in accordance with law but so far as promotion to the post of Senior Clerk is concerned, same having been given w.e.f. 1.6.1985 but that promotion was given when the petitioner was holding post of Junior Clerk which was not approved and the appointment to the post of Junior Clerk was approved vide order No.7846 dated 8.2.1990 w.e.f. 20.7.1988 for the purpose of grant in aid, since the petitioner was not holding the post of Junior Clerk on substantive capacity, hence his promotion to the post of Senior Clerk cannot be said to be based upon principle of granting promotion, for example, the incumbent if not holding the lower post on substantive basis cannot be given promotion in the higher cadre, since here hierarchy of the post began from Junior Clerk, Senior Clerk and Head Clerk, in view thereof, appointment made to the appellant by way of promotion as Senior Clerk or the Head Clerk will be said to be not proper in the eye of law. The appellant has tried to make out a case of discrimination. The appellant has tried to make out a case of discrimination. It is settled position of law that the appellate court is suppose to look into the legality, propriety and perversity if found in the order passed by the original authority and if the fact has not been brought before the original authority and in the appellate stage the same is being brought, then it cannot be assailed on that ground taking ground of perversity for the reason that the fact which has not been brought before the appellate court could not have been taken into consideration and as such on that ground question of perversity cannot be raised by the aggrieved party, since in the instant case plea of extending benefit to others namely A.K.Sahoo and V.V.Giri has not been raised before the Tribunal and on that ground it cannot be said by the appellant that the finding of the original authority is perverse. 9. This Court is repeating at the risk of repetition that as per the Grant-In-Order,1994 service of the incumbent who is seeking benefit of grant in aid is to be approved and the said incumbent is to be eligible as per the Grant-In-Aid Order,1994 and eligibility stipulates prior approval of the post by the competent authority and admittedly the service of the appellant as Senior Clerk has not been approved by the competent authority, however the appellant has tried to impress upon the Court by putting reliance upon the Annexure-7 which is extract of verification report of D.G.B.K. College,Kasarda for eligibility of teaching and non-teaching post to receive grant in aid for the current financial year 1996-97 by which the appellant has been recommended to be given benefit of grant-in-aid against the post of U.D.C. and Head Clerk but it is settled position of law that recommendation cannot be said to be an order under law and it is not an order of the competent authority, however the said recommendation is given by the Assistant Director, Higher Education while the prescribed authority to approve the same is the Director, Higher Education and as per the definition of Director which means Director, Higher Education which includes officer not below the rank of Deputy Director. Admittedly, Assistant Director, Higher Education is below the rank of Deputy Director and as such his recommendation cannot be said to be valid in the eye of law since he is not the prescribed authority or the competent authority under the statute, hence putting reliance upon the Annexure-7 is of no substance. 10. In view of the entirety of the facts and circumstances of the case, this Court, in exercise of appellate jurisdiction conferred under section 24-C of the Civil Procedure Code, is of the view that there is no perversity in the order impugned or no infirmity has been assessed rather the finding given by the Tribunal is based upon well founded reason based upon legal position and as such this Court is declined to exercise appellate power, hence the appeal fails and it is dismissed. Final Result : Dismissed