Orissa High Court
Boilochan Rout vs State Of Orissa And Others on 10 February, 2017
Author: D. Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA, CUTTACK
F.A.O. NO. 306 OF 2011
From the judgment and order dated 18.07.2011 passed by learned
State Education Tribunal in G.I.A. Case No. 120 of 2009.
.........
Boilochan Rout :::: Appellant.
VERSUS
State of Orissa & Others :::: Respondents.
For Appellant :::: M/s. K.K. Swain &
P.N. Mohanty, Advocates.
For Respondents :::: M/s. D.K. Mohapatra,
A. Sahoo, advocates,
Addl. Govt. Advocate,
M/s. Sameer Ku. Das,
S.K. Mishra, advocates.
.........
PRESENT :
THE HON'BLE MR. JUSTICE D.DASH
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Date of hearing: 22.12.2016 : Date of judgment: 10.02.2017
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In this appeal under section 24-C of Orissa Education Act,
1969 (hereinafter in short called as the 'Act'), the order passed by the
learned State Education Tribunal in GIA Case No. 120 of 2009 has
been assailed.
2. Facts necessary for disposal of this appeal are stated
hereunder:-
The appellant as the petitioner has filed the above noted
case under section 24(B) of the Act before the learned Tribunal
=2=
questioning the recommendation of the respondent no.4 (opposite
party no.4 before the learned Tribunal) for approval of his service in
the first post of lecturer in Political Science in Nalinikanta
Mahavidyalaya, Chandibaunsamula, Rajnagar in the district of
Kendrapara as illegal. The appellant as a contender of the same has
further advanced the prayer that his name be recommended for the
purpose and he be granted with all other consequential benefits
attached thereto. The prayers have been rejected by the learned
Tribunal.
The appellant's case is that his initial appointment was in
the second post of lecturer in Political Science by the governing body
of the college on 21.02.1995. Pursuant to the same, the appellant
joined therein on 28.02.1995. It is stated that prior to the same,
respondent no. 4 had been appointed in the first post of lecturer in
Political Science on 07.01.1994 when he was working as Sikhya
Karmi (Annexure-3). It is next alleged that subsequently while
continuing as such, he was selected and engaged as Sikhya Sahayak
by order dated 03.07.2007 (Annexure-5). He resigned from the 1st post
of Lecturer in Political Science. On 06.07.2007 by addressing a letter
of resignation to the Secretary of the College (Annexure-4) on getting
employment as Sikshya Sahayak in Rajnagar Block, he asked for its
acceptance by the governing body. The resignation being accepted, the
=3=
post of lecturer in Political Science fell vacant and this appellant
claims to have been elevated to the said post by the governing body by
issuance of order dated 07.07.2007.
It is next stated that the college in question has been notified
to receive the block grant as per order of the GIA Order, 2008 by
notification dated 25.11.2013 (Annexure-A). However, the governing
body still recommended the name of the respondent no. 4 against the
first post of lecturer in Political Science which is attacked as illegal as
by then the respondent no.4 had already joined as the Sikshya
Sahayak pursuant to his due and proper selection as such and
undertaking the employment thereof 18.07.2007. Therefore, the
appellant's case is that the service of respondent no.4 ought not to
have been placed for approval and the recommendation to that effect
by the governing body is nonest.
3. The respondent nos. 1 and 2 in the counter have come
out to state that as per the resolution of the governing body the
appellant started his service career as lecturer in Political Science
with effect from 20.11.1998. It is further stated that the service of
respondent no.4 as Sikshya Karmi was terminated on 09.12.1992 and
therefore he was no more the Sikhya Karmi after 09.12.1992 and has
been continuing to work as lecturer in Political Science w.e.f.
13.01.1994. The resignation of respondent no.4 and elevation of the =4= appellant are doubtful. It is again submitted that the joining of respondent no. 4 against the post of Sikshya Sahayak is not substantiated.
4. The governing body of the college arraigned as respondent no. 3 has supported the case of respondent no. 4 that he was duly appointed in the first post of lecturer in Political Science and had joined as such on 13.01.1994, duly ratified by governing body by resolution dated 08.08.1994. It is stated that since then he has uninterruptedly rendered the service as such. So the recommendation for approval of his service is asserted to have been rightly made. It is stated that the appellant was not having the qualification of being appointed as lecturer in Political Science nor he has acquired the same later.
The respondent no. 4 asserted himself to be the contender in the first post of lecturer in Political Science and to have been continuing all along being duly appointed. It is also stated that he has neither resigned from the service in the college nor had joined as Sikshya Sahayak as pleaded by the appellant.
5. On the above rival case, the learned Tribunal formulated the following points for consideration:-
(i) Whether the recommendation for approval of appointment of respondent no. 4 against the 1st =5= post of Lecturer in Political Science in the college in question is liable to be set aside?
(ii) Whether the appellant is entitled for recommendation of his name for approval of his appointment and consequential release of Grant-in-
Aid?
The learned Tribunal while going to answer point No. 2 has held that since at the time of elevation of the appellant as against the first post of Lecturer in Political Science on 07.07.2001, he had no required percentage of marks i.e. 55% as per the provision of Odisha Education Service (Higher Secondary Branch Method of Recruitment and Conditions of Service) Rules 1991, his service can't receive the approval for the first post of Lecturer in Political Science being ineligible. In course of discussion, it has been held that the facts of resignation of respondent no. 4 on 06.07.2007 and his appointment as Sikhya Sahayak in Rajanagar Block are doubtful.
6. Mr. K.K. Swain, learned counsel for the appellant first of all submits:-
(i) that the finding of the learned Tribunal as regards joining of respondent no. 4 as Sikhaya Sahayak by holding that to be doubtful is wholly unsustainable.
According to him, the Tribunal has not given any weightage and rather has completely brushed aside =6= the documents produced from the side of the appellant which practically clinch the issue.
(ii) It is next contended that when the appellant has questioned the very appointment of respondent no. 4 as also the recommendation made in his favour, learned Tribunal ought to have answered this issue being under legal obligation to do so.
(iii) (a) It is also his submission that the learned Tribunal has not examined the validity of the appointment of respondent no. 4 as against the first post of Lecturer in Political Science when a clear case has been made out that it is vitiated by fraud supported by all the documents to establish the manipulation of records.
(b) It is contended that governing body in the counter when have stated that respondent no. 4 was appointed after due process of selection and joined on 13.01.1994 pursuant to the resolution dated 07.01.1994 and since then has been uninterruptedly discharging his duties as such when his appointment has been confirmed by the governing body by resolution dated 08.08.1994; but =7= the staff position submitted by the college on 02.07.2007 under Annexure -9 which has been obtained under RTI Act reflects that respondent no. 4 was appointed by resolution dated 30.01.1994.
Furthermore when then the very resolution also goes to show that one Ranjan Kumar Mohanty of Bira Hanuman Jew Mahavidyalaya, Nikirai, was one of the members of selection committee, at the same time, information has been obtained under RTI Act that no such person namely, Rajan Kumar Mohanty then was working as Lecturer in Political Science in Bira Hanuman Jew Mahavidyalaya, Nikirai.
Similarly, the resolution dated 07.01.1994 under Annexure -15 rather reveals that in the selection committee one Chittaranjan Biswal and Bijay Ketan Routray were the participants in the said selection whereas information under Annexure
-16 has been obtained that those two Lecturers, one in Political Science and another in Odia in their College i.e., S.S.J. Mahavidyala, Rajanagar had not been deputed as experts to conduct the interview at =8= Nilinikanta Mahavidyalaya, Chandi Baunsamula on that very day.
Mr. Swain thus submits that this fraud has been unearthed in so far as appointment of respondent no. 4 is concerned. When it has been further ascertained that one Abhina Kumar Swain has been shown as the predecessor in office of respondent no. 4; as per the staff position submitted by the College. Shri Swain joined as Lecturer in Political Science in the first post prior to the appointment of respondent no. 4 on 27.08.1993 and had resigned on 13.01.1994 (Annexurer-18-
page 66) and he has been appointed in Swapneswarpur College, Barahapur on 03.05.1993 where he is continuing (Annexure-17).
(iv) It is his contention that when the law is very clear that no person shall be eligible to receive Block Grant against an aided post unless he (a) has been lawfully and validly appointed to the post by the competent authority in accordance with the Act and Rules and instruction in force at the time of his appointment, (b) has been continuing to hold that =9= post as such and beyond date of eligibility of the post to receive block grant; and (c) is possessed of all the educational qualification and experience required for holding that post at the time of his recruitment or on the date, the post was admissible to Grant-in-Aid; whichever is later, the respondent no. 4's appointment being clearly vitiated by fraud, it does not stand as his entitlement to receive the Block Grant from the State Government as per GIA Order 2008. In support of his submission, he has placed reliance on the decision of the Apex Court in Meghanada & Others Vrs. Narasingha Reddy; 2010 AIR SCW 528.
(v) Next going to the eligibility of the appellant, he contends that the disqualification found by the learned Tribunal is that he has no requisite qualification i.e. 55% of marks at the time of elevation to the first post on 07.07.2007. Countering the same and submitting it to be erroneous, it is contended that Rule -13(2)(b) of GIA Order, 2008 clearly says that one has to possess the educational qualification and experience = 10 = required for holding that post at the time of his recruitment, so the appellant when was appointed on 21.12.1995, he was having the 53% of marks which was in consonance with rule -4(2)(d) of Orissa Education Service (Higher Secondary Branch Method of Recruitment & Conditions) of Services Rules 1991 prescribing minimum 48% of marks which has been amended w.e.f. 11.06.1997 enhancing this 48% to 55%. Therefore, it is stated that amendment cannot have the retrospective effect which position has been settled in case of Sri Dillip Raj Pradhan Vrs. State of Orissa & Others; 106(2008) CLT 411. Therefore, in the notification dated 27.12.2010 in pursuance of para
-19 of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in- Aid Order, 2008 which had been issued by the Government para -3 of the said notification has been deleted later by corrigendum dated 10.10.2011 when the fact remains undisputed that till that date, this para -3 was in force. In view of that, it is contended that, learned Tribunal has = 11 = committed grave error by going to look into the qualification of the appellant at the time of elevation but not at the time of recruitment in finally holding it to be deficient.
(vi) It is next stated that by the time respondent no. 4 resigned and joined as Sikhaya Sahayak on 17.07.2007, the College in question had not acquired the status as the aided educational institution, which only came to be conferred by the notification dated 25.01.2013. So, it is contended that the stand taken by the governing body that when respondent no. 4 undertook the employment as Sikhaya Sahayak, it may be a misconduct under Rule - 11(e) of Orissa Education (Recruitment and Conditions Service of Teachers and Members of Staff of aided Educational Institutions) Rules 1974 but that does not invalidate his appointment and that is not legally tenable, for the simple reason that the rules being applicable to aided institutions, those are of no significance in so far as the present case is concerned. He also contends that once the respondent no. 4 joined as Sikhaya Sahayak, it = 12 = goes without saying that he ceased to be under his erstwhile employment as lecturer in Political Science in the College. This according to him was a dubious conduct on the part of respondent no. 4 that he was taking opportunity and chance in both so as to choose one where either earlier or better benefits stand attached. According to him, further reason that acceptance of such resignation is not permissible under Rule 31 of the Orissa Education (Establishment, Recognition and Management of Private Junior Colleges / Higher Secondary Schools) Rules, 1991 is not tenable as the rule also says that seven day's notice is not necessary for each and every meeting. He has invited the attention of this Court to the provisions of Rule 31(1)(2) of above Rules.
(vii) Attacking the conclusion of the learned Tribunal that the appointment of the appellant was void since second post of Lecturer in Political Science was not legally admissible at the relevant time; his contention is that the same is incorrect both in fact and law. According to him, it is nobody's case that = 13 = second post in Lecturer in Political Science was not admissible. The governing body has not taken such a stand and it is a third case which has been invented by the learned Tribunal, when in law the governing body is estopped to question the appointment on that ground as there was no bar for the governing body. He derives support from the decision of this Court in case of Majhipada M.E. School Vrs. State of Orissa & Others; 1992(1) OLR 447.
(viii) About the claim of respondent no. 4 that appellant is not going to the college, he contends it to be false and that it has been attempted to make out by taking advantage of their own wrong. It is stated that the Principal-in-Charge of the College in order to take that as a ground to deprive the appellant and bulldoze his claim has deliberately not allowed the appellant to take classes. So being moved, the Director by order dated 25.02.2014 has asked the Sub-Collector-cum-President of the governing body to assign classes to the appellant.
= 14 = He also contends that learned Tribunal has the authority to decide the appointment dispute in view of the ratio of the decision of the Full Bench of this Court in case of Smt. Rama Panigrahi Vrs. State of Orissa; 2003 (1) OLR 438 which has held the decision rendered in Nalini Prava Das Vrs. State of Orissa; 2001 (1) OLR 447 to have been correctly decided and that according to him is also in consonance with the language of section 24-B of the Odisha Education Act.
Summing up, he urges that the findings and conclusion arrived at by the learned Tribunal are all untenable and it is a fit case to hold that the appellant is entitled to the benefit of Block Grant provided under Grant-in-Aid Order, 2008 being in the first post of Lecturer in Political Science in the College and as such his service has to be receive the approval for the purpose.
7. Learned counsel for the opposite party no. 4 supported by learned counsel for the opposite party no. 3 on the other hand contends that learned Tribunal has rightly rejected the claim of the appellant in view of the statutory bar in respect of the possession of educational qualification that neither he had the required percentage of marks as on 01.06.2003 in consonance with Clause - 13(2)(a)(b) of = 15 = Grant-in-Order, 2008 nor on the date of elevation on 07.07.2007 as claimed nor even as on date.
It is submitted that although the submission advanced before this Court on behalf of the appellant concerns with the appointment and eligibility of the respondent no. 4 to receive Grant-in-Aid yet no case has been made out in so far as the eligibility of the appellant to receive the Grant-in-Aid under said G.I.A. Order, 2008 is concerned. So, on this lone ground, the claim according to him, does not stand.
It is next contended that when as required under Clause - 13(2)(a) of the G.I.A Order, 2008, the appellant is not eligible to receive the Grant-in-Aid as also when his appointment is void abinitio on that ground, his claim falls flat being without foundation.
Reliance has been placed on the decision in case of Union of India (UOI) & Others Vrs. Vasavi Cooperative Housing Society Limited and Others; AIR 2014 SC 937 that in a suit for declaration of title and possession, the plaintiff has to succeed on the strength of his own case and not on the weakness of case setup by the defendants.
The decision in case of Banalata Mohapatra Vrs. State of Orissa; AIR 1999 SC (1) 739 has been relied upon in support of the case that if the person was not qualified, he has no right of claim any Grant-in-Aid and even if the deficiency of the qualification has been = 16 = later on condoned that can't give rise to the right to claim Grant-in- Aid under the first post.
In respect of so called resignation of respondent no. 4, the decision in case of Krushna Chandra Dev Vrs. State of Orissa & 4 Others; 2009(II) OLR 797 has been cited and support is derived for the purpose that absence from duty for a long period may amount to voluntary abandonment of service and in that eventuality, the bond of service comes to an end automatically without requiring any order to be passed by the employer.
The decision in case of State of Odisha & Another Vrs. Mamata Mohanty; 2011 (3) SCC 436 where legal position has been laid down on the point that possession of marks less than the required percentage bars the eligibility for the said post and there cannot be any relaxation with regard that qualification in the absence of an enabling provision in the statute or rules in disregard to the object of the statute and after initiation of selection process. So, post appointment relaxation given to under qualified lecturer has been held as nullity; so also the decision in case of Jambeswar Mahavidyalaya Vrs. Director Higher Education; 120 (2015) CLT 181 has been cited on this point.
8. The respondent no 4 when is said to have been appointed as Lecturer in Political Science in first post on 07.01.1994, confirmed by = 17 = the governing body dated 08.08.1994, the appellant's appointment is said to be on 21.02.1995 for the second post of Lecturer in Political Science. It is next stated that the resignation letter of respondent no. 4 was submitted on 06.07.2007 which was accepted on the same day and on the next date, the appellant was adjusted in the first post of Lecturer consequential thereto.
The rival claim remain that when appellant claims to have been elevated in the first post of Lecturer in Political Science after the resignation of respondent no. 4; continuance in the service of said post is asserted by respondent no. 4 notwithstanding his appointment as Sikhya Sahayak and joining therein which are not denied; and at the same time it is said that he was taking the classes regularly without receiving any salary as Sikhya Sahayak.
Before the Tribunal with some materials, the appellant has also called in question the very appointment of respondent no. 4 to be void.
9. Learned counsel for the respondent no. 4 submits that when in an application under section 24(B) of the Act, the appellant has claimed his entitlement to be Grant-in-Aid benefit, he is to establish his case on that score and is precluded from challenging the very appointment of respondent no. 4. I am unable to accept the submission that when the appellant has raised the question of the = 18 = appointment of respondent no. 4 as void abinitio placing some materials that it is based on manipulated records and by way of fraudulent activity which is coming to be unearthed later and going stand against the entitlement of appellant and consequential thereto, if it is accepted, when the appellant is likely to get the benefit in that event provided he succeeds to establish his case, the question as raised has to be answered and cannot be sidelined without being addressed in accordance with law.
The decision in case of Union of India & Others (supra) does not for the above reason make the submission of learned counsel for the respondent no. 4 acceptable on the score that here in the facts and circumstances, the appellant can't question the legality of respondent no. 4's appointment.
10. It is to note here that learned Tribunal in its finding has not touched that aspect and instead it has recorded that the resignation of respondent no. 4 on 06.07.2007 and his appointment as Sikhaya Sahayak are doubtful which is said to be contrary to the materials available on record. This approach appears to be erroneous and the learned Tribunal was under legal obligation to decide if the respondent no. 4 had at all been appointed as Sikhya Sahayak and had joined and accordingly to note the impact of the same in his service as Lecturer in the 1st post in Political Science in the college.
= 19 = The respondent no. 4 does not claim to have never been selected and appointed as Sikhya Sahayak. It is his case that he has not performed his duties as such there and he continued to discharge his duty in the first post of Lecturer in Political Science notwithstanding his joing as Sikhya Sahayak. Also since the appellant had questioned the appointment of respondent no. 4 as void on the ground of fraud that ought to have been answered first.
This is because of the settled position of law that an act of fraud is to be viewed seriously and more particularly when a case is projected on that foundation, the Court in order to decide the lis has to rule out that possibility as otherwise the Court's order would give a seal of approval to that fraud.
11. The governing body of the college in the counter before the learned Tribunal under Annexure -8 has stated that respondent no. 4 was appointed after facing due selection process on 07.01.1994 and pursuant to the same, he joined on 13.01.1994. Since then he has been discharging his duties uninterruptedly. The matter had also been confirmed by governing body in resolution dated 08.08.1994. But in the staff position submitted by the college on 02.07.2007 under Annexure -9, the name of respondent no. 4 finds place at sl. no. 3 being said to have been appointed by resolution dated 30.01.1994. The copy of the resolutions dated 07.01.1994 and = 20 = 30.01.1994 are under Annexure - 14 and 15 respectively. The resolution dated 30.01.1994 when goes to show that one Ranjan Kumar Mohanty of Bira Hanuman Jew Mahavidyalaya, Nikirai was one of the Members of the Selection Committee, the Principal of the said college has categorically informed that no such person was then working in the college as Lecturer in Political Science. The resolution dated 07.01.1994 goes to show that one Chittaranjan Biswal, Lecturer in Political Science of S.S.J. Mahavidyalaya, Rajanagar was there in the Selection Committee. But the information has come from that S.S.J. Mahavidyalaya, Annexure -16 that Chittaranjan Biswal on that day had never been deputed as an expert for the purpose to conduct any interview and he was very much working in the college on that day. In addition to this, one Abhina Kumar Swain is found to be the predecessor of respondent no. 4 as is seen from the staff position submitted by the college prior to the appointment of respondent no. 4 on 27.08.1993, he resigned on 13.01.1994. This Abhina Kumar Swain was appointed in Swapneswarpur College, Barahapur on 03.05.1993 and he is continuing there as is seen from Annexure -17. Thus the submission of the learned counsel for the appellant is acceptable on this score that the records of the college have been manipulated in so far as the appointment of respondent no. 4 is concerned and although he has been said to have been appointed, it = 21 = has not been the outcome of a selection having been taken place in accordance with law. Therefore, when para -13 of Orissa Non- Government Colleges, Junior Colleges and Higher Secondary Schools Grant-in-Aid order, 2008; particularly Rule -13 (2)(a) speaks of a valid and lawful appointment, the case of the respondent no. 4 has to pass through the said test. So, on the above ground, the claim of respondent no. 4 has no foundation and the recommendation of the governing body to that effect is not legally tenable.
Point having been raised, even accepting for a moment that the appointment of respondent no. 5 was valid and lawful, the documents reveal that respondent no. 4 was appointed as Sikhya Sahayak and he had joined in Radhakanta Jew Nodal U.P. School on 18.07.2007. It is further stated that since he remained absent from that very day onwards, he has not been paid his remuneration. Admittedly, this fact was not informed to the College on the next day that he was no more interested to work as Sikhya Sahayak and though joined is not working. Now, it is stated that he resigned there as Sikhya Sahayak also and instead would work in the first post of Lecturer as before nor he has asked for withdrawal of his resignation.
I am unable to find as to how these facts are doubtful. The day he joined as Sikhaya Sahayak i.e. on 18.07.2007, it goes without saying that he ceased to be a Lecturer in Political Science in the = 22 = college. The college then being not within the Grant-in-Aid fold, the respondent no. 4 cannot avoid this position by saying that acceptance of his letter of resignation being made on the very day of its tendering, it is not permissible, in view of rule -32 of the Orissa Education (Establishment of Recognition and Management of Private Junior Colleges / Higher Secondary Schools) Rule 1991. The ratio of the decision in case of OBCC Ltd (supra) is of no help to the respondent no. 4 where the court was seized with a question of termination of service merely in view of absence without departmental proceeding. Therefore, in view of the aforesaid discussion, the appointment of respondent no. 4 is not valid and lawful and recommendation made by the governing body for giving approval to his service as such falls flat on the ground having no legal backing.
Now coming to the appointment of appellant, as in the second post of Lecturer in Political Science, the objections stand at the outset that such a post was not admissible. Admittedly, the stand has not been taken by the governing body so far as the number of persons being appointed in the post of Lecturers in the subject is concerned, the cap remains for the purpose for Grant-in-Aid providing the yard stick. Here, the governing body is not questioning that and in fact is estopped from doing so as held in case of Majhipada M.E. School (supra).
= 23 = The next objection is that the appellant is not going to the college which is not acceptable on the face of the order of the Director dated 25.02.2014 (Annexure -H) pursuant to his assertion that he was not allowed to take up classes in the college.
The last and important question is the appellant's elevation to the first post of Lecturer in Political Science. Learned Tribunal has said that the appellant was not having the requisite qualification with 55% of marks at the time of his elevation to the first post on 07.07.2007. Undoubtedly, rule 13(2)(b) of the GIA Order, 2008 prescribes that one has to possess educational qualification and experience required for holding the post at the time of his recruitment. When the appellant was appointed on 21.12.1995, he was having 53% of marks i.e., more than 48 % of marks as required under rule 4(2)(d) of Orissa Education Service (Higher Secondary Branch) Method of Recruitment and Conditions of Services Rules, 1991. This rule has undergone amendment on 11.06.1997, whereby 48% of marks has been enhanced to 55% of marks. Although it has to be said to have been so done looking at the challenge in the field and the need, as also to improve the quality of education at that particular time of amendment, yet such amendment of the rule cannot stand to apply retrospectively. The Division Bench of this Court in case of Dillip Raj Pradhan (supra) has considered that case where the = 24 = petitioner had been working as a Lecturer in Oriya and holding the first post of Lecturer in the College. The question of possession of required percentage of mark had arisen there.
It has been held therein:-
"11. We are of the considered view that whereas no objection could have been taken to the appointment of the petitioner on 28.02.1986 and that the promulgation with the 1991 Rules, since the petitioner satisfied the requirement of rule 4(2)(d) thereof, he became entitled to be declared as a competent and eligible teacher suitable for appointment in Junior College. No doubt, it is true that in 1997, the eligibility requirement was enhanced to 55% marks. Such amendment and enhancement would obviously cover appointments or after the said date of amendment and not earlier operation and would operate prospectively from the date of its enactment.
In the present case, the amendment of 1997 to Rule 4(2)(d) does not contain any stipulation making the said amendment retrospective and obviously, therefore, no objection can be raised neither to the appointment of the petitioner in the year 1986 and the petitioner is to be held as a person holding the requisite qualification for holding the post of Lecturer in Junior College. Further even applying the judgment of the Hon'ble Apex Court in the case of Damodar Nayak (supra) and the Judgment of the Full Bench of Orissa High Court in the case of State of Orissa v. Pranaya Kumar Mohapatra, the petitioner having possessed the requisite qualification to the = 25 = appointment as Junior Lecturer on the date of his appointment, as well as on the date of when the Grant-in- Aid Order 1994 came into force, there is no reasonable basis for denying the petitioner approval of his service and release of Grant-in-Aid in his favour."
So, in the instant case, the appellant having achieved 53% of marks at the time of recruitment, the elevation thereafter is dependant upon the happening of the incident as provided in that notification of the Government dated 27.12.2010 as regards the resignation and death of the person in the particular post. Para -3 of said circular says that if a teaching staff resigns from his/ her service and dies in service and the governing body of the college has elevated the Lecturer of the same college who has been appointed as per his / her eligibility / admissibility, he would be entitled to receive the Grant-in-Aid/ Block Grant in the former post of Lecturer who resigns or dies in service. This has been omitted by corrigendum dated 10.10.2011 after remaining in force from 27.12.2010 to 09.10.2011. Thus, the finding of the Tribunal as regards non-possession of qualification by the appellant and the consequential elevation are unsustainable and cannot be allowed to stand. For the aforesaid, the findings arrived at by the learned Tribunal are hereby set aside.
12. Resultantly, the appeal stands allowed and in the peculiar facts and circumstances of the case without cost. The respondent no. 1 and 2 are hereby directed for according approval to = 26 = the appointment of the appellant against the fist post of Lecturer in Political Science and as being entitled to the benefits in accordance with Grant-in-Aid Order, 2008.
........................
D. Dash, J.
Orissa High Court, Cuttack, Dated the 10th day of February, 2017, Narayan