Orissa High Court
Ramesh Ch. Dash vs State Of Orissa And Others on 18 October, 2017
Author: S. N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P. (C) Nos.2593 & 2594 of 2003
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Ramesh Ch. Dash (in W.P.(C) No.2593 of 2003)
Sulochana Dash (in W.P.(C) No.2594 of 2003)
...... Petitioners
- Versus-
State of Orissa and others ...... Opposite Parties
For Petitioners : M/s.K.K. Swain, B. Jena, P.K. Mohanty.
For Opposite Parties :Mr. S. Mohanty (Addl. Standing Counsel),
M/s. Sanatana Das, P. Tripathy (for O.P. 3)
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 18.10.2017
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S. N. Prasad, J.This writ petition is under Article 226 and 227 of the Constitution of India, wherein the petitioners have assailed the order dated 22.02.2003 under Annexure-5 whereby and where under the petitioners have been held to be not entitled to get the benefit under the Validation Act, 1998.
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2. Case of the petitioners in brief is that they have been appointed as Lecturer in Botany (1st Post) on 16.08.1986 and Lecturer in Physics (1st Post) on 1.10.1988 by the Governing Body of the S.S.B. College in the district of Kendrapara, an aided educational institution respectively.
3. The Government has taken a conscious decision for validating the services of appointment of certain lecturers of aided college and junior colleges in the State by enacting an Act in the name of the Orissa Aided Educational Institutions (Appointment of Lecturers Validation) Act, 1998 (hereinafter referred as Act, 1998), whereby and where under the decision has been taken under Section 3, that the lecturers of Aided Colleges and aided Junior Colleges who have been appointed on temporary basis against approved or admissible posts by the concerned Governing Bodies during the period between the 1st January, 1985 and 31st December, 1992 and are continuing as such, having requisite qualifications prescribed to hold such post and are in pay roll of the concerned College against the said approved or admissible post, as the case may be, shall be deemed to have been validly and regularly appointed and no such appointment shall be challenged in any court of law merely on the ground that such appointment was made otherwise than in accordance with the procedure laid down in the Education Act or the rules framed thereunder, provided that the validation of the appointments as aforesaid shall not put persons already appointed regularly and validity or persons who may be appointed on the basis of the recommendations made by the Selection Board prior to the 3 commencement of this Act, in a disadvantageous position in any manner whatsoever.
The authorities in the light of the said provision has taken decision for validating the service of the petitioner by passing an order in this regard on 9.1.2001 under order No.1469, whereby and where under the service of the petitioners has been validated w.e.f. 1.6.1987 and 3.10.1988 and the name of the petitioners appear at Sl No.4 and 3 respectively in the said order.
The competent authority, in the light of the decision taken by the authority under the Validation Act, by validating the service of the petitioners has also passed an order for payment of grant-in-aid to these lecturers being subject to stipulation under Section 7-C(1) of the Orissa Education Act, 1969, wherein the name of the petitioners appears at Sl. Nos.4 and 3 respectively.
4. Case of the petitioners is that however their service has been validated but their arrears of salary during 1996 to 2001 since been not paid, they have filed the writ petition bearing 10083 of 2001 and 10085 of 2001 respectively and a coordinate Bench of this Court while disposing the writ petitions vide order dated 16.08.2001 has directed the State authorities to take decision with respect to the grievance of the petitioner in 4 the light of the ratio decided in the case of Mrs. Laxmipriya Das and others vrs. State of Orissa and others (OJC No.8997 of 2001).
The petitioners have made due representation for redressal of their grievance in the light of the order passed by this Court but when the authorities have not acted upon the same, they have filed contempt before this Court and during pendency of the contempt petition, the authorities have come out with an order dated 22.2.2003, whereby and where under their service has been found to be illegally validated under the provision of the Validation Act, 1998, reason assigned therein that there is manipulation in the official records of the Governing Body regarding their appointment.
5. The contention raised by the learned counsel for the petitioners is that the Commissioner-cum-Secretary while passing the order impugned has exceeded his jurisdiction for the reason that the Validation Act contains a provision under Section 3 which confers power upon the authority to look into the legality and propriety of the appointment which is to be validated i.e.;
(i) The period of appointment must be within 1.1.1985 and 31.12.1992.
(ii) The appointment must be against the approved post.
(iii) The employee must be in the roll of the concerned College against the approved or admissible post.
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6. It has been contended that save and except these three conditions, the Validation of the Lecturers being validated under the provision of the Validation Act, 1998 cannot be questioned but the Commissioner-cum-Secretary has gone into the manipulation having been found by him in the official record of the Governing Body, which led him to come to the conclusion that the decision taken by the authority while validating their services is not proper, hence they have not been entitled for the benefit of the Validation Act, 1998.
He further submits that this order is in counter blast to the contempt proceeding which has been pursued by the petitioner for getting the legitimate claim of arrear salary for the period from 1986 to 2001.
He further submits that so far as the case of the petitioners regarding their joining i.e. in between the period 1.1.1985 and 31.12.1992, they are working against the approved post for the reason that after 2001 they are being paid the benefit of grant-in-aid/salary and they at that time were in the roll of the College and as such their validation cannot be questioned.
7. Per contra, learned Additional Government Advocate has defended the order passed by the authority on 22.2.2003 and has submitted that the Commissioner-cum-Secretary has got enough power to look into the legality and propriety of the decision taken by the authority in 6 validating the services of one or the other lecturers under the provisions of the Validation Act, 1998.
He submits that even apart from the conditions which is mentioned under Section 3, the competent authority has got enough power to look into the legality and propriety of the decision taken by the authority under the Validation Act, 1998.
He has submitted that the petitioners have been appointed by the Governing Body as such there must be proper record to be maintained by the Governing Body and when it has been examined by the Commissioner-cum-Secretary, he has found that there is wide manipulation in the record of the Governing Body and as such the appointment of the petitioners has been found to be suspicious, hence they are not entitled to get the benefit of Validation Act, 1998, hence the Commissioner-cum-Secretary has taken well reasoned decision by passing the impugned order as such the same needs no interference by this Court.
8. Heard learned counsel for the parties and perused the documents available on record and on appreciation of the rival submission of the parties it is evident from the record that the petitioners have joined as Lecturer in Botany (1st Post) on 16.08.1986 and Lecturer in Physics (1st Post) on 1.10.1988 by the Governing Body of the S.S.B. College situated in the district of Kendrapara, an aided educational institution respectively. 7 The Government has taken a decision to validate the services of such lecturers working under the aided educational institutions by making an enactment in the name of the Odisha Aided Educational Institutions (Appointment of Lecturers Validation) Act, 1998, wherein the provision has been made under Section 3 which reads as follows:-
"3. Validation of certain appointments-(1) Notwithstanding anything contained in the Education Act or in the rules framed thereunder, the Lecturers of Aided Colleges and aided Junior Colleges who have been appointed on temporary basis against approved or admissible posts by the concerned Governing Bodies during the period between the 1st January, 1985 and the 31st December, 1992 and are continuing as such, having the requisite qualification prescribed to hold such post and are in pay roll of the concerned College against the said approved or admissible post, as the case may be, shall be deemed to have been validly and regularly appointed, and no such appointment shall be challenged in any Court of law merely on the ground that such appointment was made otherwise than in accordance with the procedure laid down in the Education Act or the rules framed thereunder :
Provided that the validation of the appointments as aforesaid shall not put persons already appointed regularly and validly or persons who may be appointed on the basis of the recommendation made by the Selection Board prior to the commencement of this Act, in a disadvantageous position in any manner whatsoever.
(2) The Lecturers whose appointments are so validated shall be governed by the Odisha (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-
aid, Order 1994 for the purpose of their entitlement, but they shall be entitled to receive grant-in-aid towards their salary-cost only as per the scale of pay admissible to a non- Government College Lecturer from time to time, with effect from the date of the commencement of this Act."
It is evident from the said provision that the Government has taken a conscious decision to validate the services of one or the other 8 lecturers working under the aided college subject to fulfillment of certain conditions;
(i) the appointment must be within 1.1.1985 and 31.12.1992;
(ii) the candidate must have been appointed with the requisite qualification prescribed to hold such post;
(iii) the employee must be in the roll of the concerned college against the said approved or admissible post.
9. Case of the petitioners has been taken into consideration that they have fulfilled the eligibility qualification as laid down under the provision of Section 3, the competent authority has taken decision on 9.1.2001, whereby and where under their services have been validated w.e.f. 1.6.1987 and 3.10.1988 respectively, subsequently the authorities has passed an order on 28.03.2001 by extending the benefit of grant-in-aid in exercise of power conferred under Section 10(3) of the Orissa Education Act, 1969. The petitioners in the meanwhile were pursuing their claim for disbursement of arrear of salary which was in between the period of 1986 and 2001 and when it has not been disbursed, they have no option but to file writ petition bearing W.P.(C) Nos.10083 of 2001 and 10085 of 2001 respectively and a coordinate Bench of this Court while disposing of the writ petitions vide order dated 16.08.2001 has passed the following order:-
" The petitioners, Lecturers serving in Aided Educational Institution, whose appointment (s) has/have been validated under the provisions of the Orissa Aided Educational Institutions (Appointment of Lecturers Validation) 9 Act, 1998 (The Orissa Act 14 of 1998) filed this writ petition challenging, inter alia, non-disbursement of salary. The points agitated the present writ application are squarely covered by the judgment in the case of Mrs. Laxmipriya Das and others vrs. State of Orissa and others (OJC No.8997 of 2001).
Accordingly, this writ application is disposed of with the direction that the case of the petitioner (s) be considered by the opposite parties in consonance with the ratio decided and directions issued in the case of Mrs. Laxmipriya Das (supra)."
The petitioners in the light of the said order have made due representations before the competent authority but when their grievance has not been redressed hence they have invoked the contempt jurisdiction of this Court, in which notice has been issued thereafter the authority has passed an order on 22.2.2003, said to have been conferred upon it under the grant-in-aid order read with Section 7 (C) of the Amendment Act and scrutinized the record of the Governing Body wherein it was detected by him that there is manipulation of the record of the Governing Body, absence of continuous page numbers, absence of names of the Governing Body members, absence of signatures of Governing Body members and other relevant details and as such the authorities have come to conclusion that the decision of the authority in validating the services of the petitioners was not proper, accordingly the petitioners held not entitled to get benefits 10 under the Validation Act, 1998. The said order is under challenge in these writ petitions.
10. The order dated 22.2.2003 stipulates that the Commissioner- sum-Secretary has invoked the jurisdiction conferred to it under the provisions of the Grant-in-aid order read with Section 7 (C) of the Amendment Act.
11. This Court has gone across the provision of Grant-in-aid and Section 7(C) of the Odisha Education Act, 1969 and from its perusal, it is evident that the Commissioner-cum-Secretary or any other authority has not been conferred with any power to see the legality and propriety of the validation having been made under the Validation Act, 1998.
It is not in dispute that the decision of the Validation once taken can be reviewed but subject to the condition that if the conditions mentioned under Section 3 of the Validation Act, 1998 is not being fulfilled by one or the other candidate.
12. Here, on perusal of the order dated 22.2.2003 there is no reference that the petitioners are not fulfilling the conditions as laid down under Section 3 of the Validation Act, 1998, however learned counsel for the State in course of argument has submitted that the Commissioner- cum-Secretary has not examined the other part of the order, since it has 11 been stipulated in the order dated 22.2.2003 that there might be other requirements under the provision of Section 3 (1) of the Validation Act, 1998 which are also to be examined, however first requirement has to be fulfilled before the other relevant points are examined, as such, it has been submitted that the matter may be remitted before the authority to examine other part of the eligibility as stipulated under the Section 3 of the Validation Act, 1998, but this argument is not having its force and it is rejected for the reason that there are three conditions mentioned as referred above, on scrutiny of the record and considering the admission regarding the date of engagement, it is evident that the petitioners have been engaged in between 1.1.1985 and 31.12.1992 and as such on this account, there is no requirement to conduct any enquiry.
13. So far as the second eligibility condition regarding holding the post against the sanctioned post it is also not in dispute for the reason that the petitioner is getting the regular salary from the year 2002 onwards and is still getting and when they are still getting the salary regularly, it is beyond any imagination that an employee can get the salary without the post having been sanctioned, hence on this account also no further scrutiny is required to be made.
14. So far as third condition is concerned, admittedly the petitioner was on the roll at that time, hence there is no need to remit the matter for further examination by the competent authority and if it will be 12 remitted, it will unnecessarily harass the petitioners, hence this Court is of the considered view that the matter requires no fresh consideration regarding the eligibility condition as mentioned under Section 3 (1) of the Validation Act, 1998.
15. So far as the legality and propriety of the order passed by the Commissioner-cum-Secretary, it is beyond its jurisdiction to scrutinize the record of the Governing Body in order to assess the validation of the service of the petitioners since it is beyond the purview of the provision of Section 3 of the Validation Act, 1998.
It is also very surprising that on earlier occasion, the Government has taken conscious decision by validating the service of the petitioners and thereafter the benefit of grant-in-aid in contemplation of power conferred under Section 3 of the Validation Act, 1998 and the Grant- in-aid order has also been extended in favour of the petitioners and subsequently after two years the impugned orders have been passed that too without issuing show cause to the petitioners.
16. In that view of the matter and after going through the legal position and also the material available on record, the impugned order dated 22.2.2003 suffers from infirmity and as such is not in accordance with law.
Accordingly, the same is not sustainable in the eye of law. 13 In the result the order dated 22.2.2003 passed by the Commissioner-sum-Secretary, Higher Education Department is hereby quashed.
Accordingly, both the writ petitions are stand allowed.
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S. N. Prasad, J.
Orissa High Court, Cuttack, Dated the 18th October, 2017/RRJena