Satyanarayan Sarangi vs State of Orissa and Others

S.N. Prasad, J.—In this writ petition filed under Articles 226 and 227 of the Constitution of India petitioner has approached this Court for issuance of direction upon the opposite parties 1 to 2 to validate his service as Lecturer in Odia under the Validation Act, 1988 in the college in question and to release consequential benefits.

Case of the petitioner is that he has been appointed in 2nd post of Lecturer in Odia in Nachuni Mahavidyalaya, Nachuni in the district of Khurda in between 1.1.1985 and 31.12.1992, hence in view of the promulgation of Orissa Aided Educational Institutions (Appointment of Lecturers Validation) Act, 1998 services of the petitioner will be deemed to have been validated in view of the provisions as contained in Section 3(1) of the Validation Act.

Further contention of the petitioner is that the authorities is supposed to validate his service by taking help of Section 9(c) of the Orissa Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 which provides formula for deciding workload to treat the post as admissible.

It has been contended that this fact has also been decided by this Court in the case of Ms. Bilkesh Parveen and another v. State of Orissa and another reported in 2007(1) OLR 133 which has also been confirmed by the Hon''ble Supreme Court in Civil Appeal No. 2401 of 2011 vide order dated 20.8.2015 wherein it has been held that workload to be determined for admissibility of a post by computing total workload of Degree Course and Higher Secondary course in all streams conducted in that institution.

Learned counsel for the opposite party-State has vehemently opposed the prayer although no counter affidavit has been filed but he has taken help of the counter affidavit filed in O.J.C. No. 3132 of 2002 relating to same issue and submission has been advanced on the basis of the submissions made by the opposite parties-State in the counter affidavit of that writ petition and has stated that the case of the petitioner does not deserves to be considered in the light of the fact that composite workload of the institution cannot be taken into consideration since the college has been categorized as in Category-I and Category-II as would be evident from Order-4 of the Grant-in-Aid Order, 1994.

It has further been contended that +2 and +3 wings of the college in question cannot be taken as one institution, since the petitioner is imparting study in +2 wings of the said College, only workload of +2 wing will be considered for admissibility of the post of Lecturer in Odia.

Heard learned counsel for the parties and perused the documents available on record.

Sole dispute raised by the parties in this case is regarding validity of service of the petitioner as Lecturer in Odia in the college in question under section 3(1) of the Validation Act, 1998.

Claim of the petitioner is that since he has been appointed in between 1.1.1985 and 31.12.1992 possessing requisite qualification based upon which he is functioning as Lecturer in Odia as 2nd post which will be treated to be admissible on the basis of formula provided in this regard under Order 9(c) of the Grant-in-Aid Order, 1994

While on the other hand opposite party-State has contended that the case of the petitioner is to be looked in the light of the Order-4 of the Grant-in-Aid Order, 1994 wherein category of the college has been mentioned.

In order to resolve the dispute it is necessary to see the relevant provision of the Validation Act, 1998 and Grant-in-Aid Order, 1994. Section 3(1) of the Validation Act, 1998 is being quoted for ready reference.

"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, as 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.

Provision of Order No. 4 of Grant-in-Aid Order, 1994 is also needs to be referred which contains description of the educational institution category wise.

"Category-I-(i) Non-Government Educational Institutions and approved posts in such institution which have received grant-in-aid from Government or in respect of which grant-in-aid has been sanctioned by Government prior to the commencement of the Amendment Act;

(ii) Other posts in Non-Government Educational Institutions covered under Category-I(i) which were admissible on the basis of workload and prevalent yardstick and had been filled up prior to commencement of the Amendment Act, but in respect of which no grant-in-aid had been sanctioned.

Category-II-(i) Colleges imparting institutions in and presenting regular candidates for the B.A., B.Sc., or B.Com. examinations with or without Honors of any of the Universities which have been functioning regularly for five years or more by the 1st June, 1994 after obtaining Government concurrence recognition and affiliation of any University, or for three years or more if such institution is located in an educationally backward district, which has not been notified as an Aided Educational Institution and has not received grant-in-aid from Government for any post.

(ii) Higher Secondary Schools and Junior Colleges conducting courses in Arts, Science and Commerce which have been functioning regularly for 5 years or more by the 1st June, 1994 after obtaining Government concurrence or recognition and of the Council, or for 3 years or more if such an institution is located in an educationally backward district, which has not been notified as an Aided Educational Institution and has not received grant-in-aid from Government for any post."

Order No. 9(c) of the G.I.A. Order, 1994 needs to be referred which is being quoted.

"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."

There is no dispute that the college in question has been categorized as Category-I as provided under Order 4 of the G.I.A. Order, 1994 but method has been given for declaring a post to be admissible which has been provided under the provision of Order 9(c) of the G.I.A. Order, 1994. From perusal of the provision as contained in Order 9(c) it is evident that workload of both the institution is to be taken into consideration, meaning thereby workload of +2 and +3 wings will have to be taken into consideration for declaring a post to be admissible.

This has also been interpreted by this Court in the case of Ms. Bilkesh Parveen (supra) having been affirmed by the Hon''ble Supreme Court in Civil Appeal No. 2401 of 2011 disposed of on 20.8.2015, relevant part of the same is quoted below for ready reference.

"Rule 9(c) of the Grant-in-Aid Order, 1994 categorically states that the workload to be determined for admissibility of a post by computing the total workload on account of Degree Course and Higher Secondary Course in all the streams conducted in that institution."

Thus there is no dispute regarding the legal provision to declare a post to be admissible to be decided on the basis of provision as contained in Rule 9(c) of the Grant-in-Aid Order, 1994, according to which workload of both the +2 and +3 wings of the college is to be taken into consideration.

In the counter affidavit filed in O.J.C. No. 3132 of 2002 which is a party to the same college in paragraph-8 a specific averment has been made which is being quoted for ready reference.

"xxx Admittedly, when the petitioner was appointed on 20.10.1992 the 3rd post of lecturer in Political Science against which the petitioner has claimed for validation was not admissible to the college on the basis of workload of the aided +2 wing although the said post was admissible on the basis of composite workload of the college taking into account such workload of both +2 and +3 wings of the college. xxx."

Hence by taking into account the specific averments made in para-8 of the counter affidavit as indicated hereinabove, there is no dispute regarding the fact that both Wings i.e. +2 and +3 is going on in the institution in question and in the light of this the case of the petitioner requires to be decided in accordance with law within period of eight weeks from the date of receipt of copy of this order.

Needless to say that if workload in pursuance to the provisions as contained in Order 9(c) of the Grant-in-Aid Order, 1994 permit the 2nd post of Lecturer in Odia, consequential relief shall be granted to the petitioner within further period of four weeks from the date of taking decision.

If, however, in case of adverse decision, same shall be communicated to the petitioner within the period aforesaid.

The writ petition is accordingly disposed of.