BIJAY KUMAR SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this writ petition under Articles 226 and 227 of the Constitution of India the petitioner has challenged the arbitrary and illegal rejection of his claim for approval and consequent release of Grant -in -aid against the post of Demonstrator in Chemistry of Rajsunakhala College in the District of Nayagarh by the Government in an erroneous application of the Grant -in -aid Order, 2004 whereas the said Grant -in -aid is not applicable to the petitioner's case as the petitioner's case is covered by the Grant -in -aid Order, 1994 and Clauses 3 and 4 of Grant -in -aid Order, 2004 have saved the petitioner's case.

(2.) THE fact of the petitioner's case is that in the year 1978 -79 the opposite party No. 3 college, i.e., Rajsunakhala College, Rajsunakhala was established with requisite concurrence and affiliation. In the year 1983 -84 Science stream was opened in the said college with 128 seats and one Sri Rabindra Nath Muduli joined as Store Keeper -cum -Lab. Assistant in Chemistry Department of the college. In the year 1985, specifically on 1.11.1985, the college was declared and notified as an aided educational institution and was admitted to the Grant -in -aid fold as per Grant -in -aid Order, 1979. In the year 1988 said Sri Rabindra Nath Muduli, Store Keeper -cum -Lab. Assistant resigned before steps could be taken for approval and release of Grant -in -aid in his favour. On 21.11.1988 the petitioner was appointed as Store Keeper -cum -Lab. Assistant in Chemistry Department in the vacancy caused by the resignation of Sri Rabindra Nath Muduli with continuity of the post from the year 1983 -84 vide Annexure -1. In the year 1992, specifically on 21.6.1992, the college re -designated the said post of Store Keeper -cum -Lab. Assistant where the petitioner was continuing as Demonstrator in pursuance of G.O.R. No. 31587 dated 11.7.1991 of the Govt. in Higher Education Department. Since after establishment of the College during the year 1978 -79 and opening of +2 Science stream during the year 1983 -84 and requisite concurrence and affiliation were granted in the same year, the post of Demonstrator in Chemistry Department was very much justified as per the prevalent yardstick. The College was notified as an aided educational institution as per Section 3(b) of Orissa Education Act and became eligible to receive Grant -in -aid from the year 1984 -85, in view of the admissibility of the petitioner's post in the college as per the prevalent yardstick the said post was eligible to receive Grant -in -aid, i.e. 1/3rd with effect from 1.6.1990, 2/3rd from 1.6.1992 and full salary cost with effect from 1.6.1994. The Management of the college sent proposal for approval of petitioner's appointment and release the Grant -in -aid in the aforesaid manner to the Director of Higher Education (O.P. No. 2) during the year 1997, which was not considered for a pretty long time. Under such circumstances, the petitioner filed OJC No. 14052 of 2001 before this Court and this Court vide order dated 23.9.2002 disposed of the said writ petition directing the College to send the proposal to the Director of Higher Education and the Director was required to furnish the said proposal to the State Government with his recommendations within a period of three months where upon the State Government was directed to consider and take a final decision with regard to approval and release of Grant -in -aid within a further period of three months.

(3.) PURSUANT to the notices issued all the opposite parties have filed their counter affidavits. Opposite parties 1 and 2 have filed their joint counter affidavit on 28.6.2005 and the opposite party No. 3 - College filed counter affidavit on 1.5.2005. In the counter affidavits it is not disputed that the petitioner was appointed as Store Keeper -cum -Lab. Assistant in the Chemistry Department of the College on 21.11.1998 and that the said post was re -designated as Demonstrator and the College has been admitted to Grant -in -aid fold from 1984 -85 session under the prevalent Grant -in -aid Order, 1979. Further the fact that the post of Demonstrator is admissible to the College and that the Director has recommended the petitioner's case for approval and release of Grant -in -aid are all admitted. But the State Government (O.P. No. 1) in its counter sought to justify its action in Annexure -4 on the ground that the policy decision of the Government not to admit any new post in the cadre of Class -III and Class -IV into Grant -in -aid fold due to serious financial constraint and that the Grant -in -aid Order, 1994 having been repealed by the Grant -in -aid Order, 2004, there is no scope left for consideration of petitioner's case.