UPENDRA KUMAR SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Director, Higher Education, Orissa, in office order No. 22067 dated 1.5.1996 (Annexure -13) refused to approve the appointment of the petitioner as lecturer in English in Pranakrushna Mahavidyalaya, Baitarani Road, on the ground that he was not qualified to hold the post of lecturer as he had secured 53.9% marks at the qualifying examination which was less than the minimum percentage of marks prescribed by the Government at the relevant time. As no counter affidavit had been filed, the writ petition was disposed of by order dated 26.3.1997 on the basis of the averments made by the petitioner wherein it was held that in view of the Government clarification in letter No. 22585 dated 29.6.1979, the marks of the petitioner could be rounded -up to 54 per cent which was the qualifying marks for recruitment of lecturers. In view of the fact that the petitioner had got 53.9 per cent of marks, the same was rounded to 54 per cent and the Director, Higher Education , Orissa was required to approve the appointment of the petitioner within one month of receipt of the order.

(2.) ON 18.8.1997 the petitioner filed Misc. Case No. 10178 of 1997 alleging non -implementation of the aforesaid order and prayed for further appropriate direction. The said misc. case was adjourned from time to time at the request of the State counsel. Thereafter on 15.9.1997 the opposite parties filed Misc. Case No. 11482 of 1997 praying to recall the order dated 26.3.1997 on the grounds, inter alia, that certain documents relevant for the purpose cold not be brought to the notice of the Court at the time of disposal of the case. Considering the grounds stated therein, by order dated 17.9.1997 we recalled the order dated 26.3.1997 by which the writ petition was disposed of. Consequently O.J.C. No. 6462 of 1996 was set down for fresh hearing.

(3.) IN the counter affidavit filed by opposite party No. 1, it has been pleaded that the petitioner was not a candidate selected by the State Selection Board nor was there any prior approval from the Director for such appointment as required under Rule 5 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institutions) Rules, 1974. From the resolution dated 11.2.1989 of the Governing Body (Annexure -A) it appears that because none turned up to face the interview for selection of lecturer in English in the College, the Secretary of the Governing Body appointed the petitioner to take care of the English teaching in the college as by that time the result of his M.A.Examination had not been publishsed. The resolution of the Governing Body was categorical that in the event the petitioner failed to obtain 54% marks in the M.A.Examination his service would be done away with. The petitioner did not secure the required 54 percent marks in the M.A. Examination held in July, 1989 and secured 53.9% marks (result of which was declared an 10.4.1990). Thus by 11.2.1989, 16.3.1989 and 17.3.1989, the petitioner had not secured 54% of marks and, as such, he was not qualified to hold the post of lecturer in English.