Rabindra Nath Sethy vs State of Orissa and Others

P.K. Mohanty, J.—The petitioner calls in question the Office Order in Annexure-1 posting him as a Laboratory Attendant and has prayed for quashing the same and directing the opposite parties not to interfere with his continuance as a Mechanic in the College.

The petitioner''s case in brief is that he was appointed as a Laboratory Attendant in the Physics Department of Kendrapara College, by Order dated 29.6.1977, which he joined on 1.7.1977. He was promoted to the post of Mechanic provisionally subject to approval of D.P.I. and subject to other conditions by Order dated 13:9.1978. Principal submitted detailed particulars of non-teaching staffs of the college along with the name of the petitioner to the Deputy Director for approval of their appointment for the purpose of release of grant-in-aid. The D.P.I. in his Office Order communicated in letter dated 7.4.1981 approved his appointment with effect from 1.9.1978 along with others. The Deputy Director (NGC-1) in his Order dated 23.11.1993 (Annexure-8) modified the Order dated 13.1.1993 and accorded approval to the appointment of petitioner as a Laboratory Attendant in the Department of Physics with effect from 1.7.1977 a copy of which is Annexure-8. Pursuant to the aforesaid Order dated 23.11.1993 the Principal, Kendrapara College issued Office order dated 4.4.1994 (Annexure-1) posting the petitioner as Laboratory Attendant in place of one B. Ojha, transferred, which according to the petitioner is illegal and arbitrary, he having been working as Mechanic, and duly approved as such, by the Director.

The Opp. Party No. 2-Director, Higher Education in his counter has refuted the claim of the petitioner and denied the claim inter alia on the ground that he was originally appointed as Laboratory Attendant with effect from 1.7.1977 and promoted to a non-existing post of Mechanic in the Department of Physics of Kendrapada College on 1.9.1978 and, as such, such appointment to a non-existing post could not have been approved. It is the case of the Director that Government prescribed yardstick for non-teaching staffs in non-Government Colleges in the State in G.O. No. 23950/EYS. Dated 8.7.1977 and decided to approve all appointments made between 1.4.1977 and 15.7.1977 whether covered by yardstick or not and appointments beyond 15.7.1977 but within 13.9.1977 and covered by the yardstick. Copies of the Government Orders have been annexed as Annexures-A/2 and B/2. It is averred that no post of Mechanic has so far been created by the Government in Kendrapara College nor was any proposal received from the College for creation of such post and hence promotion of the petitioner made by the College was invalid. According to Opp. Party No. 2, approval vide Annexure-6, however, was a bona fide mistake by the then Director. However, the mistake was detected when the Principal sent a proposal to Director for inclusion of the post of Mechanic, in his letter No. 2723 dated 27.10.1990 and after thorough scrutiny of records, the Director modified the order of approval in respect of the petitioner and approved him against the post of Laboratory Attendant on non-yardstick basis with effect from the date of his joining i.e., 1.7.1977 by Order dated 23.11.1993 as in Annexure-8. According to this opposite party, the creation of non-teaching posts is to be made by the Government and not by the Director. It is submitted that no salary has been disbursed in favour of the petitioner nor any salary has been fixed till date. A rejoinder affidavit has been filed by the petitioner more or less reiterating the averments made in the Writ Petition.

In view of the pleadings of the parties and submissions made, the moot question that arises for consideration is, whether a post of Mechanic in the Department of Physics of Kendrapada College was existing as on 1.9.1978, the date the petitioner is said to have been promoted by the Governing Body and as to whether, in view of the approval granted by the Director to such post, the petitioner acquires a right to continue as such. Incidentally, it has also to be determined as to whether the Director had the competence to approve such a post which was yet to be created and is he estopped from modifying such approval.

A perusal of Annexure-A/1 the yardstick prescribed by the Government in Education and Youth Services Department in Statement-II clearly indicates that a post of Mechanic is admissible in the Department of Physics of a non-Government Private College like the Kendrapara College, the minimum qualification for fresh recruitment being a pass in H.S.C. Examination along with a Diploma of certificate in Mechanics/Electrical from any recognized Institution. But in letter dated 13.7.1978 of the Government, copy of which is Annexure-B/2 it has been clearly stipulated that Government on careful consideration have approved the appointment of the categories of non-teaching staff in the aided non-Government College as in (i) and (ii) thereto and directed the D.P.I. to take steps for release of funds for payment of their salaries and intimate the steps taken. The categories of staff approved are :

(i) All appointments made between 1.4.1977 and 15.7.1977 whether covered by the yard-stick or not;

(ii) All appointments made beyond 15.7.1977 and 13.9.1977 and covered by the yard-stick.

Now the question is whether the Director could have approved the post of Mechanic to which the petitioner was promoted on 1.9.1978. The creation of any teaching or non-teaching post of a College, admittedly is to be made by the State Government. The State Government in its letter dated 13.7.1978 (Annexure-B/2) has approved all posts to which appointment is made by the College from 1.4.1977 to 15.7.1977 even if it were not as per yard-stick as well as appointments made within the yard-stick as well as appointments made within the yard-stick between 15.7.1977 and 13.9.1977. Admittedly, appointment of petitioner to the post of Mechanic by way of promotion has been made on 1.9.1978 which is not covered under Annexure-B/2. But it appears from Annexure-3 the extract of the Resolution dated 2.4.1978 that the Governing Body resolved to create the post of Mechanic in the Department of Physics with effect from the next session and pursuant to the Resolution, the petitioner was promoted as a Mechanic in the Department of Physics subject to the approval of the D.P.I. in the scale mentioned therein. Copy of the relevant Office Order is Annexure-5. But it appears that the College has not moved for creation of the post nor the State Government has approved the creation of post of Mechanic in Physics Department of Kendrapada College, where the petitioner is serving. The Director, Public Instructions (Higher Education) Orissa in Office Order dated 13th January, 1982 (Annexure-6) in exercise of powers conferred under Article 133 of the Orissa Education Code, approved the non-teaching staff of Kendrapara College from the dates mentioned against each, in which the petitioner''s name stands at Serial 30 and thus, his appointment as a Laboratory Attendant and promotion to the post of Mechanic from 1.9.1978 was approved. But the order of promotion to the post of Mechanic having been made beyond 13.9.1977, it is not covered under Government Resolution (Annexure-B/1). However, the Director, Higher Education in his Office Order dated 23.11.1993, copy of which is Annexure-8 approved the appointment of the petitioner in the post of Laboratory Attendant in the Department of Physics with effect from 1.7.1977 on non-yard-stick basis. The petitioner''s appointment in the post of Mechanic having been approved with effect from 1.9.1978, as evident from Annexure-6 by the D.P.I. (H.E.), the question of further approval of the post of Laboratory Attendant in Annexure-8 dated 23.11.1993 did not arise. But, however, Opp. Party No. 2 in his counter has taken the stand that since no post of Mechanic had been created by the Government nor any proposal for creation of the post of Mechanic had been received from the College, the petitioner''s appointment to the non-created post of Mechanic could not be valid, but by bona fide mistake committed by the Directorate, the petitioner was approved as a Mechanic with effect from 1.9.1978 (Annexure-6 to the Writ Petition). According to the Director, Opp. Party No. 2 his mistake was detected when the Principal sent a proposal to the Directorate for inclusion of the post of Mechanic in his letter dated 27.10.1990 for which the invalid order of approval was modified in order dated 23.11.1993, Annexure-8).

In office Order dated 23.11.1993 (Annexure-8), the Director appears to have partially modified the Order No. 2053 dated 13.1.1993 (perhaps what was modified is the Order No. 2053 dated 13th January, 1982 but not order dated 13.1.1993) and approved the appointment of the petitioner as Laboratory Attendant in Department of Physics with effect from 1.7.1977 on non-yard-stick basis subject to the condition as mentioned therein. The Director, if was of the opinion that the approval made in the year 1982 was a mistaken one and the Director approving such appointment did not have the authority of law to do so, before unilaterally taking a decision in the matter ought to have given an opportunity to the petitioner as well as the College concerned to have their say in the matter. Prima facie, it appears that the order of the Director, Public Instruction (H.E.) Orissa in office Order No. 2053 dated 13.1.1982 (Annexure-6) so far as it relates to the petitioner''s promotional post of Mechanic was not in consonance with the order of the Government in letter No. 25001/EYS dated 13.7.1978 (Annexure-B/2) since it was neither an appointment made between 1.4.1977 and 15.7.1977 nor beyond 15.7.1977 but within 13.9.1977 and covered by the yard-stick. It further appears that the Director in his office order Annexure-6 had approved/sanctioned the appointment under Article 133 of the Orissa Education Act. There is nothing on record to indicate that the petitioner was appointed to the post of Mechanic directly after notifying such vacancy in the manner prescribed and after following the procedure of appointment. But he was promoted to the post of Mechanic. A perusal of the Statement-II in the prescribed yard-stick Annexure-A/2 indicates that only one post of Mechanic in the Department of Physics in a College with prescribed qualification was available. But there is nothing on record to show that the post of Mechanic is a promotional post from the post of Laboratory Attendant. It is also not borne out from record as to whether persons similarly situated like the petitioner were considered and the qualification and other criteria fixed for the post of Mechanic was taken into account by the College authorities while promoting the petitioner. Be that as it may, the petitioner has been continuing as a Mechanic since 1.9.1978. In such situations, when the then D.P.I. (H.E.) in his common Order dated 13.1.1982 (Annexure-6) has approved the promotion of the petitioner in the post of Mechanic in the Department of Physics, without the post having been created or even when no proposal was made by the College for such creation, such approval was illegal and unauthorized, admittedly where a post is to be created with the sanction of the Government and not the Director and therefore the order of modification passed by the Director in Annexure-8 cannot be termed illegal or invalid. However, in view of the peculiar facts of this case, when the petitioner has been promoted to the post of Mechanic by the College may be illegally and the petitioner is continuing in such post because of the illegal order of approval passed by the Director, we direct the opposite parties, the State Government as well as the Director, Higher Education, to consider the question of creating a post of Mechanic in the Physics Department of Kendrapada College and absorbing the petitioner in the said post as expeditiously as possible preferably within a period of three months from the date of communication of this order. It is, however, made clear that the petitioner shall be paid his salary and other entitlements as available to the post of Laboratory Attendant from the grant-in-aid component from 1.7.1977 the date when he was appointed and such appointment has been duly approved after deducting the amount the petitioner has received from the Management, as such within a period of two months from the date of receipt of this order.

The Writ Application is disposed of in the aforesaid terms.

R.N. Biswas, J.

I agree.