PRAFULLA KUMAR SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE case of the petitioner as stated in the writ petition is that he was appointed as Library Attendant on 8.11.1985 by the Governing Body of Kunja Bihari College, Barang in the district of Khurda which is an educational institution aided by the Governmentof Orissa. Pursuant to the said appointment, he joined as Library Attendant on 8.11,1985 and worked as Library Attendant. His appointment as Library Attendant was also approved by the Director of Higher Education, Orissa and grant in aid was released in his favour with effect from 1.6.1991. By a resolution of the Governing Body of the said college adopted on 5.6.1996 the petitioner was promoted to the post of non graduate Librarian (Junior Librarian) with effect from 1.6.1987 in the vacancy of Smt. Sarojini Mohapatra who was promoted to the post of Graduate Librarian with effect from 1.6.1987. The case of the petitioner for appointment/promotion to the post of Junior Librarian was sent to the Director, Higher Education, Orissa and thereafter to the State Government for approval. Since no decision was taken by the authorities, the petitioner filed a writ petition O. J. C. No 15112 of 1997 before this Court which was disposed of by order dated 10.11.1997 of this Court with the observation that the authorities will deal with the matter expeditiously preferably within a period of six months from the date of receipt of the order of the Court. Pursuant to the said order dated 10.11.1997 of this Court, the case of the petitioner was considered and rejected by the Director, Higher Education, Orissa by order dated 21.10.1998 on the ground that the post of Junior Librarian cannot be filled up by way of promotion. The petitioner then submitted a representation to the State Government with a copy to the Director, Higher Education, Orissa. The Director, Higher Education, Orissa then in his letter dated 19.5.1999 moved the State Government for reconsideration of the case of the petitioner for approval of his appointment to the post of Junior Librarian with effect from 1.6.1987 and for release of grant in aid in favour of the petitioner in the post of Junior Librarian with effect from 1.6.1992. Since no decision was taken by the State Government on the said representation of the petitioner and the recommendations of the Director, Higher Education, Orissa, the petitioner filed another writ petition O.J.C. No. 498 of 2000 before this Court and the writ petition was disposed of with the direction to the State Government to consider the said representation, if pending, within six months from the date of receipt of the order of the Court. Pursuant to the said direction of this Court in the order dated 17.1.2000 in O.J.C. No. 498 of 2000, the State Government has considered the proposal for approval of the appointment of the petitioner against the post of Junior Librarian and has rejected the same by order dated 9.8.2000 which is quoted herein below :

(2.) MR . K. K. Swain, learned counsel for the petitioner submitted that the reasons given in the impugned order dated 9.8.2000 of the Government quoted above are that the Government of Orissa in the Finance Department has taken a decision to abolish 50 % of the base level posts as a measure of fiscal reform and that it has been decided that the second post of Librarian is not essential for the college at this stage to be admitted into the grant in aid fold. He submitted that these reasons given by the State Government in the impugned order dated 9.8.2000 for rejecting the case of the petitioner for approval and grant in aid in the post of Junior Librarian are not tenable in law. Mr. Swain submitted that under Sub section (4) of Section 7(C) of the Orissa Education Act, 1969, the State Government has made the Orissa (Non Government Colleges, Junior Colleges and Higher Secondary Schools) Grant in Aid Order, 1994 and eligibility and entitlement to grant in aid has to be decided by the Director, Higher Education, Orissa and the Government in accordance with the said statutory Grant in Aid Order, 1994. He pointed out the Section 7 C of the Orissa Education Act was introduced by the Orissa Education (Amendment) Act, 1994. He submitted that all Non Government educational institutions and approved posts in such institutions which have received grant in aid from the Government or in respect of which grant in aid had been sanctioned by the Government prior to the commencement of the Orissa Education (Amendment) Act, 1994 as well as other posts in such Non Government educational institutions which were admissible on the basis of work load and prevalent yardstick and have been filled up prior to the commencement of the Orissa Education (Amendment) Act, 1994, but in respect of which no grant in aid had been sanctioned fall under category I as has been stipulated in Clause 4 of the Grant in Aid Order, 1994. Mr. Swain further argued that Clause 9(1) of the Grant in Aid Order, 1994 further provided that a teaching and non teaching post in a Non Government Educational Institution coming under category l in respect of which grant in aid has been sanctioned at any time prior to the commencement of the Amendment Act shall be deemed to be an approved post for the purpose of this order. He also referred to the provisions of Clause 12 of the Grant in Aid Order, 1994 to show that so far as posts in educational institutions falling within Category l are concerned, the State Government in obliged to make provision in the budget and make arrear payment towards grant in aid for such posts. Mr. Swain vehemently argued that the recommendation of the Director of Higher Education, Orissain the verification report enclosed along with the letter dated 2.6.2000 to the Additional Secretary to Government of Orissa, Department of Higher Education in Annexure 11 to the writ petition has been made in accordance with the said provisions in Clauses 4, 9(1) and 12 of the Grant in Aid Order, 1994. He explained that Kunja Bihari College, Barang, district Khurda was already receiving grant in aid from the Government prior to the commencement of the Orissa Education (Amendment) Act, 1994 and the post of Junior Librarian was admissible on the basis of work load and prevalent yardstick and had been filled up prior to the commencement of the said Amendment Act, 1994. He submitted that college and the post to which the petitioner was appointed were covered under Category I and the post has to be approved by the Government and grant in aid has to be released in favour of the petitioner as per the recommendation of the Director, Higher Education, Orissa in accordance with the provisions of the Grant in Aid Order, 1994. Mr. Swain argued that the impugned order rejecting the case of the petitioner for approval and grant in aid was ultra vires Section 7(C) of the Orissa Education Act and the Grant in Aid Order. 1994.

(3.) MR . Swain next submitted that a reading of Sub section (1) of Section 7(C) of the Orissa Education Act would show that it applies only to private educational institutions and not posts in such private educational institutions. According to Mr. Swain, therefore, once a private educational institution comes into the fold of grant in aid, the State Government cannot rely on the provisions of Sub section (1) of Section 7(C) of the Orissa Education Act and say that it has no money in its budget to pay grant in aid to meet the salary cost of a post of a private educational institution which is already receiving aid from the State Government. In support of this argument, Mr. Swain relied on a decision of the learned Single Judge of this Court in Mrs. Laxmipriya Das and Ors. v. State of Orissa and Ors., 2001 (II) OLR 358. Mr. Swain argued that in this case, since Kunja Bihari College, Barang, district Khurda is already receiving aid from the Government, the Government cannot take a plea under Sub section (1) of Section 7(C) of the Orissa Education Act that it has no money in its budget to pay the salary costs of the post of Junior Librarian in Kunja Bihari College, Barang, District Khurda.