JUDGMENT Sashikanta Mishra, J. The Petitioner, in the present Writ Petition, seeks to challenge the order dated 29.10.2011 passed by the Joint Director (Schools), Regional Directorate of Education, Bhubaneswar (Opposite Party No.2) in Appeal Case No.356/1998 whereby the then Inspector of Schools, Mayurbhanj Circle, Baripada was directed to approve the appointment of present Opposite Party No.3 as 3rd Peon of the School. 2. Bereft of unnecessary details, the facts of the case are that Panchayat High School, Nada, was established in the year 1989 and received recognition of the Government vide order dated 29.6.1991. One Gangadhar Senapati, who was working as Night Watchman-cum-Sweeper, being the 3rd Post, resigned from service in 1993. Consequently, an advertisement was issued by the Management for filling up the vacancy. Five persons including the Petitioner applied pursuant to such advertisement out of whom the Petitioner was selected. The Managing Committee vide Resolution No.40 dated 15.5.1993, resolved to appoint the Petitioner as the 3rd Peon. He joined as such on 22.5.1993. The Petitioner belongs to the Scheduled Tribe category. The Managing Committee submitted proposal for approval of its staff including the Petitioner. By order dated 30.3.2009 issued by the Inspector of Schools, Mayurbhanj (Opposite Party No.4), the Petitioner's appointment was approved with eligibility to receive grant-in-aid by way of block grant representing 60% of the emoluments in the Revised Scale of Pay Rules, 1998 w.e.f. 01.4.2008. While the matter stood thus, the present Opposite Party No.3 filed an appeal before the Director, Secondary Education, being Appeal No.356/1998 for a direction to allow him to function as 3rd Peon with all consequential benefits and for declaration that the appointment of the present Petitioner as such, was illegal. It was claimed by him that he was appointed on 07.7.1993 in the 3rd Post whereas the Petitioner was appointed later. It was further alleged that he was not to come to the School as the 4th Peon was not admissible. After receiving notice, the Managing Committee appeared before the Director and filed its counter disputing the claim of the Opposite Party No.3. It was stated that Opposite Party No.3 was appointed as the 4th Peon and continued till 1994 but after introduction of the staffing pattern of the Government, he automatically disappeared. After receiving notice, the Managing Committee appeared before the Director and filed its counter disputing the claim of the Opposite Party No.3. It was stated that Opposite Party No.3 was appointed as the 4th Peon and continued till 1994 but after introduction of the staffing pattern of the Government, he automatically disappeared. It is further stated by the Petitioner in the present writ petition that since Opposite Party No.3 was appointed as 4th Peon, which was a non-existent post at the relevant time, he could not have been adjusted against the vacancy arising against the 3rd Post as claimed by him. Despite such facts however, the appellate authority on complete non-application of mind held that the Opposite Party No.3 is the proper claimant for the post of 3rd Peon of the School and any appointment and approval made against the said post is invalid. The Inspector of Schools was thus directed to approve his appointment as 3rd Peon. On such facts, the Petitioner has approached this Court seeking the following relief; 'It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the case, call for the records and after hearing the parties issue a writ/writs in the nature of a writ of certiorari quashing the order dated 29.10.11 passed in Appeal Case No.356/1998 under Annexure-8 after declaring the same as illegal. ' 3. The private Opposite Party No.3 alone has filed a counter. It is stated that the Opposite Party No.3 was appointed on 3.7.1991 as 4th Peon. When the vacancy arose due to resignation of the incumbent 3rd Peon Gangadhar Senapati, the Managing Committee selected him and issued appointment order on 7.7.1993. The then Secretary-cum-Headmaster, however appointed the Petitioner as the 3rd Peon on 8.8.1994 asking Opposite Party No.3 to work and sign as the 4th Peon knowing very well that the 4th Peon is not admissible. As such, the Opposite Party No.3 submitted complaint before the Inspector of Schools on 10.8.2014, but to no avail. It is further, alleged that the Secretary-cum-Head Master collected huge amount from newcomers and took bribe to appoint the Petitioner by ousting Opposite Party No.3. Thereafter, he was not allowed to function in the School from 7.7.1995 nor allowed to sign in the attendance register. Since his complaints did not evoke any response, he filed appeal before the Director. It is further, alleged that the Secretary-cum-Head Master collected huge amount from newcomers and took bribe to appoint the Petitioner by ousting Opposite Party No.3. Thereafter, he was not allowed to function in the School from 7.7.1995 nor allowed to sign in the attendance register. Since his complaints did not evoke any response, he filed appeal before the Director. The Director directed the Inspector of Schools to conduct inquiry, who submitted a detailed report clearly indicating the fact of corruption and tampering of documents relating to appointment of the Petitioner and of suppression of facts. Considering such report, the Director has rightly allowed the appeal. 4. Heard Mr. Sadasiva Patra, learned counsel for the Petitioner, Mr. S.N.Patanaik, learned Addl. Government Advocate for the State and Mr. J. Biswal, learned counsel appearing for the private Opposite Party No.3. 5. It is argued by Mr. Patra that the impugned order dated 29.10.2011 is without jurisdiction since by such time the Institution had come into the grant-in-aid fold and therefore, the Director was no longer competent to hear the same. The State Education Tribunal is the proper forum, which the Opposite Party No.3 should have approached. On merits, it is submitted by Mr. Patra that the Petitioner was appointed after being selected in a selection process, which was never challenged at the relevant time, by Opposite Party No.3. Even on his own admission, the Opposite Party No.3 was appointed against 4th post which was not admissible to the School. That apart, he did not approach the proper forum after being allegedly refused work by the Headmaster. Only when the School came into grant-in-aid fold that the Opposite Party No.3 challenged the appointment and approval of the Petitioner. Mr. Patra further argues that only on the basis of the so-called initial date of appointment, the Opposite Party No.3 cannot be treated as Senior to the Petitioner as such appointment cannot be treated as valid being against a non-yardstick post. 6. Mr. Patanaik, learned Addl, Government Advocate, submits that the order of the Director is based on the findings of the inquiry conducted by the Inspector of Schools who, after verifying all the relevant records of the Institution found the Opposite Party No.3 senior to the Petitioner. Therefore, according to Mr. Patanaik, the impugned order does not warrant any inference. 7. Mr. Patanaik, learned Addl, Government Advocate, submits that the order of the Director is based on the findings of the inquiry conducted by the Inspector of Schools who, after verifying all the relevant records of the Institution found the Opposite Party No.3 senior to the Petitioner. Therefore, according to Mr. Patanaik, the impugned order does not warrant any inference. 7. Mr. J. Biswal, learned counsel for the Opposite Party No.3, would argue that there is no dispute that the Opposite Party No.3 was appointed as 4th Peon by order dated 03.7.1991 of the Management whereas the Petitioner was appointed most illegally as the 3rd Peon on 22.5.1993. Further, by order dated 07.7.1993 the Opposite Party No.3 was appointed against the 3rd post. However, his appointment was not approved and the Opposite Party No.3 was continued to be shown as 4th Peon in the records of the School. These facts are clearly borne out in the report submitted by the Inspector of Schools before the Director, who rightly held that being senior to the Petitioner, the Opposite party No.3's appointment deserves to be approved. 8. As regards competence of the Director to adjudicate the appeal, this Court finds that it is the case of the Opposite Party No.3 that he was prevented from performing his duties and signing in the Attendance Register from 07.7.1995. It goes without saying that such prevention amounts to termination of service, which the Opposite Party No.3 should have challenged before the appropriate forum within the stipulated time. Instead, he woke up from slumber in the year 1998 and preferred the so-called appeal before the appellate authority. Of course, this Court would hasten to add that since at the relevant time the School had not come within the grant-in-aid fold, the Regional Director was competent to entertain the appeal but then in view of the gross delay, of which nothing has been said in the impugned order, the appeal could not have been entertained. Moreover, the School came into grant-in-aid fold w.e.f. 01.4.2008 i.e. during pendency of the appeal. Moreover, the School came into grant-in-aid fold w.e.f. 01.4.2008 i.e. during pendency of the appeal. Since the appeal involved the question of termination of services of the Opposite Party No.3 by way of refusal of employment as also approval of appointment for the purpose of receiving grant-in-aid, the Regional Director ceased to have jurisdiction since the School had become a nonGovernment aided educational institution within the meaning of Section 2(b) of the Orissa Education Act, 1969. As such, it was the State Education Tribunal, which was the competent forum to adjudicate the matter in terms of Section 10-A and or 24-B of the Act, as the case may be. Therefore, in all fairness, the Regional Director should have either transferred the appeal to the State Education Tribunal for disposal or returned the same to the appellant-Opposite Party No.3 for agitating his grievance before the Tribunal. In a similar case, a Division Bench of this Court, in the case of Managing Committee of Mahavir Girls' High School Vs. State of Odisha , W.P(C) No.16504/2009, held as follows; 'The scenario of facts reveals that opposite party no.4 was appointed as a teacher in the year 1997 in the aforesaid school. Her services were terminated, in the year 2000. Being aggrieved she preferred an appeal before the Regional Director of Education. When the matter stood thus, in the year 2007 the school in question received aid and became an aided educational institute. Thereafter it is submitted that the Regional Director of Education lacked the jurisdiction to decide the appeal and as such the order passed is a nullity in the eye of law. After hearing learned counsel for the petitioner and learned counsel for the opposite parties, this Court finds that in view of the changed circumstance and as the institution had become an aided one, appeal in question should not have been heard by the Regional Director. Law is well settled that an appeal lies against the order of termination, of a teacher of an unaided, educational institution to the Director and as such once the school was declared as an aided educational institution as defined under Section 2 (b) of the Orissa Education Act, the provisions of Section 10 (a) of the Act are attracted and the dispute was required to be agitated before the Orissa Education Tribunal. ' 9. ' 9. The present case stands on the same footing inasmuch as the School in question became an aided educational institution during pendency of the appeal and therefore, the Regional Director lacked jurisdiction to adjudicate upon the same. The impugned order is rendered unsustainable in law on such ground alone. 10. Even otherwise, on merits, it is seen that it is common ground that the Petitioner was appointed by order dated 22.5.1993 as 3rd Peon. It is also not disputed that by order dated 30.3.2009 his appointment was approved holding him eligible to receive grant-in-aid by way of block grant @ 60% w.e.f. 1.4.2008. On the other hand, the Opposite Party No.3 was appointed on his own admission as the 4th Peon by order dated 03.7.1991 of the Managing Committee. It is stated at the bar that as per the yardstick dtd.8.7.1981 only 3 posts were admissible to the School at the relevant time. This fact is clearly borne out from the counter filed by the Managing Committee before the appellate authority and duly reflected in the impugned order by the Director. Upon resignation of the incumbent of the 3rd post, the Petitioner was appointed after undergoing a selection process. According to the Inspector of Schools, the Opposite Party No.3 being the senior and as per rules of order of precedence relating to 'first come first serve', his name ought to have been given precedence for the purpose of fixation of inter se seniority. This Court finds the above reasoning strange inasmuch as when the initial appointment itself is invalid being against a nonexistent (non-yardstick) post, how could he be given precedence over a duly selected candidate when a vacancy arose in the 3rd post. Of course, it was open to the Opposite Party No.3 to participate in the selection process at the relevant time, but he does not appear to have done so for reasons not spelt out in the pleadings of the parties. This is a fundamental mistake committed by the Inspector of Schools in his report which surprisingly the Director has accepted giving thereby a complete go-bye to the earlier order of approval of the Petitioner against the 3rd post. The above finding therefore, warrants interference. 11. Thus, viewed from any angle, the impugned order cannot be sustained in the eye of law. The Writ Petition is therefore, allowed. The impugned under Annexure-8 is hereby set aside.