Orissa High Court

Renuprava Panda vs State Of Odisha & Others on 14 September, 2022

                           FAO NO.312 OF 2017




          IN THE HIGH COURT OF ORISSA AT CUTTACK
                  F.A.O No.312 OF 2017
  In the matter of an application under Section 19
       of the Administrative Tribunals' Act, 1985.


Renuprava Panda                         ....                   Appellant


                                   -versus-
State of Odisha & Others                ....                   Respondents



  For Petitioner         : M/s. Sameer Ku. Das, S.K. Mishra,
                           P.K. Behera, Advocate

  For Opp. Parties       : M/s. R.N. Mishra,
                           Additional Government Advocate
                           (For State-Opp. Parties)

                               M/s. Mahendra Ku. Sahoo, S.K. Rath
                               (for Opp. Party No.4))
   PRESENT:
  THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
  --------------------------------------------------------------------------
       Date of Hearing: 08.07.2022 and Date of Judgment: 14.09.2022
  ------------------------------------------------------------------------


  Biraja Prasanna Satapathy, J.

1. Heard Mr. Samir Kumar Das, learned counsel for the

appellant and Mr. R.N. Mishra, learned A.G.A on behalf of

Respondents No.1 & 2 and Mr. M.K. Sahoo, learned

counsel appearing for the private respondent No.4.

2. This appeal has been filed by the appellant

challenging the order dated 24.8.2017 passed by

the State Education Tribunal (in short, "The Tribunal") in

G.I.A Case No.87 of 2014 under Annexure-13 and also with

a prayer to quash the letter dated 26.10.2013 along with its

memorandum dated 24.10.2013 of Respondent No.2 under

Annexure-9 as well as Government letter dated 20.2.2014

under Annexure-10 and order dated 19.6.2014 of

Respondent No.2 under Annexure-11

3. Mr. Das, learned counsel for the appellant

submitted that G.I.A Case No.87 of 2014 was filed by the

appellant with a prayer to quash the order dated 20.2.2014

passed by Respondent Nos.1 and 2 and for direction to

approve the appointment of the appellant and release Block

Grant in her favour from 20.1.2009 under the provisions of

Grand In Aid Order, 2008. It is submitted that the

appellant was appointed as a Lecturer in Sanskrit vide

order dated 30.8.1992 under Annexure-7. It is submitted

that the college in question Lakheswar Women's

College, Phulnakhar was established in 1993 and

the said college was brought into the Block Grant scheme of

the Government w.e.f 20.1.2009 and accordingly it

became an aided educational institution within the

meaning of Section 3(b) of the Orissa Education Act, 1969.

4. It is submitted that on the opening of the college,

it applied for grant of permission and recognition in five

optional subject i.e. History, Political Science, Economics,

Education and Sanskrit with two compulsory subject i.e.

English and Oriya. It is submitted that even though the

application for permission and recognition was made in

respect of the aforesaid five optional subject, but the

concerned authority while granting the recognition, instead

of allowing Sanskrit as an optional subject, wrongly allowed

the subject Oriya in its place. But it is submitted that the

College after being communicated with such order and

recognition immediately brought the said fact to the notice

of the authority for necessary correction in the order of

permission and recognition. Even though the college came

into existence from the academic session 1993-94, but the

college was granted permission vide order dated 30.5.1996

from the academic session 1994-95 and recognition

was also granted vide order dated 30.10.1998

retrospectively from the said academic session

1994-95. It is also submitted that since the college while

applying the permission and recognition applied for five

optional subjects which includes Sanskrit, the college not

only admitted students in Sanskrit subject, but also those

students were allowed to appear in the Council

Examination along with other subjects right from the

beginning. It is also submitted that subsequent to the

temporary recognition granted vide order dated 30.10.1998,

the college when was extended with such recognition,

Sanskrit was allowed as an optional subject in place of

Oriya. It is also submitted that while issuing the

permanent recognition vide order dated 9.7.2004 under

Annexure-4, Sanskrit was allowed as an optional subject. It

is also submitted that subsequently vide order dated

26.8.2010, under Annexure-5, Sanskrit was allowed as an

optional subject right from the very beginning i.e. from the

academic session 1994-95 and the affiliation of the council

was also made vide order dated 25.1.2011 under

Annexure-6.

5. It is submitted that since the petitioner was

appointed as against the post of Lecturer in Sanskrit

vide order dated 30.8.1993 under Annexure-7 and the

appellant joined in the said post on 3.9.1993 with having

the required percentage of marks in M.A(Sanskrit), the

college when was brought into the fold of grant-in-aid under

G.I.A order, 2008 vide notification dated 7.1.2009, the

appellant became eligible to get the benefit of such grant

w.e.f 20.1.2009. Mr. Das, learned counsel for the appellant

also submitted that Para 10 of the GIA Order, 2008 provides

the eligibility criteria for grant of Block Grant in favour of

eligible Lecturers. Para 10 of the G.I.A Order, 2008 is

quoted hereunder.

Eligibility of posts for Block Grant--(1) A post in a Non-Government Educational Institution for which no Grant-in-aid has been sanctioned prior to commencement of this order shall be eligible for Grant-in-aid in shape of Block Grant if, --

(a) the post is admissible as per workload and yardstick prescribed in this Order as at Annexure-ll; and

(b) it has completed qualifying period of 5 years or more from the date of its admissibility or of 3 years or more in the case of an educational institution situated in an Educationally

Backward District or is a Women's Eaucational Institution.

(2) 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 or yardstick, the decision of the Director thereon shall be final.

(3) The workload shall be determined with reference to the actual enrolment during the academic year in which the post is admissible, limited to the strength of students for which recognition and affiliation has been received and the number of candidates presented at the Higher Secondary or the Degree examination, as the case may be, from the same batch of students.

(4) (i) A post shall not be deemed to have completed the qualifying period unless,--

(a) the post has been filled up on full time basis during the entire qualifying period;

(b) the post has not been filled up on Honorary or Part-time basis at any time during the entire qualifying period;

(c) the post has been filed up by a person/persons recruited in accordance with the procedure laid down in the Act, Rules and instructions as applicable at the relevant time;

(d) the post has been filled up at all times during the qualifying period by a person duly qualified to hold such a post.

(ii) If any post admissible on the basis of workload and yardstick has not been filled up in the manner indicated in Clause (i), the period during which the post was not filled up in such manner shall not count towards computation of the qualifying period.

(5) Application for approval of posts, which are eligible for approval, and application for notification of that educational institution as an Aided Educational institution shall be made simultaneously in the prescribed Form-A as at Annexure-I. Where the Director is satisfied that a post is eligible for approval he shall issue an order to that effect with prior concurrence of the

State Government indicating the date from which the post has been approved.

(6) The date of eligibility of a post for which Grant-in-aid in shape of Block Grant has not been sanctioned shall be the first day of the academic year following the date on which an approved post completes the qualifying period as applicable to the post Provided that the date of eligibility in respect of a post in an educational institution shall In no case be a date prior to the 1st June 2003."

6. Mr. Das also brought to the notice of the Court

the provision contained under Para-4 and 16 of the GIA

Order, 2008. Para 4 and 16 of the order are quoted

hereunder:

4. Eligibility criteria for consideration for Block Grant-- (1) The educational institutions described in Para. 3 which have been established with recognition of Government and affiliation of the Council or the Universities as the case may be on or before the 1st June1998 in respect of Educationally Advanced Districts, on or before the 1st June 2000 in respect of Educationally Backward Districts and Women's Educational Institutions established with such recognition and affiliation on or before the 1st June 2000 in both Educationally Advanced Districts and Educationally Backward Districts are eligible for Block Grant to be determined in the manner specified in Paragraph-16. (2) The educational institution to be considered for Block Grant in accordance with this order shall have received recognition and affiliation for each course, stream and subject taught in that institution for each academic year for a continuous period of minimum 5 years in respect of 3 Educationally Advanced District and 3 years in respect of Educationally Backward District and a Women's Educational Institution without any break or discontinuity from the date of establishment subject to the provisions of sub- Para. (1 ) : Provided that in case of break or discontinuity, to acquire eligibility, the said

qualifying period shall be computed from the date of revival.

16. Components and admissibility of Block Grant--(1) The Block Grant payable to the Non- Government Educational Institution under paragraph 9 shall be a fixed sum of Grant-in- aid, which shall be determined at the rate of 40% of the emoluments calculated at the initial of the existing time scale of pay applicable to the employees including existing. Dearness Pay and existing Dearness Allowance as admissible prospectively from the date of Notification of the Grant-in-Aid Order, 2008 in favour of the teaching and non-teaching employees of the educational institution who have become eligible to receive Grant-in-aid by 1st day of June, 2003. (2) The balance emoluments including Dearness Pay and Dearness Allowance after payment under sub- Para. (1) shall be borne by the concerned Governing Body of the Aided Education Institution."

7. Mr. Das also brought to the notice of this Court the provision in Annexure-II, of the GIA Order, 2008, Annexure-II prescribes as follows:

YARDSTICK FOR APPROVAL OF POSTS IN AIDED EDUCATIONAL INSTITUTIONS FOR PURPOSES OF BLOCK GRANT ( See Para. 10)

1. (i) Maximum number of subjects other than compulsory subjects in which admissible post of teachers will be eligible for approval for purposes of Grant-in-aid in shape of Block grant shall be as indicated in the Table below. :--

       Type of             Stream       Actual enrollment      Maximum number of
       Institution                      (subjectto maximum of the
                                                               subjects other than
                                        recognized and         compulsory subjects
                                        affiliated   strength  of
                                                               permissible
                                        students


              (1)                 (2)             (3)                    (4)

     Higher Secondary
      School

Similarly, Clause-1 (III) provides that

(iii) Where an Aided Educational Institution has received recognition and affiliation for more optional subjects as admissible on the basis of Column, 4 of the Table in Para. 1 the number of optional subjects for which teachers will be admissible shall be limited to the number indicated in Column, 4 and teachers in remaining subjects shall not be eligible for approval. In these circumstances the subjects in which posts of teachers shall be approved shall be based on the number of students presented at the Final Degree Examination conducted by the University or the Higher Secondary Examination conducted by the Council on the average during the three consecutive years preceding the date of eligibility of the institution to be notified as an Aided Educational Institution. 20 Illustration: A College has received recognition and affiliation for 128 Students and 6 optional subjects. The actual enrolment in the College is 64. it would therefore be eligible tor approval of teachers in four subiects and not in six subjects. The average enrolment in each of the sixth subects during the 5 years preceding the date of its eligibility in notification as an Aided Educational Institution was as follows:--

Subject Enrolment of students

In this example subjects like B,C,D, and E having the highest enrolment will be selected as the 4 optional subjects in which teaching posts will be eligible for approval No post of teacher for subject like A, F, will be eligible for approval."

8. Mr. Das, accordingly submitted that the

subject which will be entitled for block grant

depends upon the appearance of the students in

the examination conducted by the council as per the

eligibility three years after the recognition. In the

case in hand, the college got recognition from the

academic session 1994-95 and thereby it became

eligible to receive grant in aid in shape of block grant

after three years i.e. from the academic year 1998-99.

It is also submitted that in the subject Sanskrit

during the academic year 1996-1997 to 1998-99,

13,15 & 19 students appeared in the examination

conducted by the council. But it is submitted that

private Opp. Party No.4, who was appointed as a

lecturer in Economics approached learned Tribunal

in GIA Case No.32 of 2011 with a prayer to approve

her appointment as against the said post of lecturer

in Economics and release grant in aid w.e.f 1.4.2008

in place of the subject Sanskrit. It is submitted that

the said G.I.A case was disposed by the learned

Tribunal with a direction on Respondent No.2 to

verify the admissibility of the said post and refer to

the Government for final decision. It is submitted

that for the year 1996-97, 1997-98 and 1998-99

in the subject Economics, only 4, 8 & 16 students

appeared in the council examination

respectively. But basing on the order passed by the

learned Tribunal in G.I.A case No.32 of 2011,

Respondent No.2 issued a notice to the present

appellant on 13.3.2013 with a direction to appear

before him on 2.5.2013. It is submitted that

pursuant to the said notice, the appellant though dul

appeared before respondent No.2,but no hearing

could take place on that date due to absence of

Respondent No.2. Mr. Das submitted that thereafter

without intimating any further date of hearing of the

matter, Respondent No.2 prepared a memorandum

on 24.10.2013 under Annexure-9 and submitted

the same to the respondent No.1 recommending

Economics as the fourth optional subject of the

College and for approval of respondent No.4 as

against the said post for the purpose of release of

block grant in her favour from 20.1.2009 under

G.I.A Order, 2008. Mr. Das learned counsel for

the petitioner submitted that the said fact

was never communicated to the appellant or to the

College. It is submitted that on receipt of the

memorandum from Respondent No.2, Respondent

No.1 vide letter dated 20.2.2014 under Annexure-10

accorded its concurrence for payment of block grant

in favour of private respondent No.4. The present

appellant being aggrieved by the said order of the

Government respondent No.1 dated 20.2.2014 filed

the GIA case before the learned Tribunal with

the prayer as indicated hereinabove. It is

submitted that learned Tribunal without proper

appreciation of the stand taken in the said petition

and the provision of law contained under Para 10 of

the G.I.A Order, 2008, dismissed the application vide

the impugned order dated 24.8.2017. It is submitted

that while dismissing the claim of the appellant,

learned Tribunal held the approval of the

appointment of Respondent no.4 as valid and held

her entitled to receive grant in aid.

9. Mr. Das learned counsel for the appellant

submitted that in view of the clear provision contained in

Para 10 of the G.I.A order 2008, the services of private

respondent No.4 should not have been approved as

against the 4th optional subject Economics in place of

the subject Sanskrit, as against which subject the

appellant is continuing from the year 1993. It is also

submitted that Respondent No.2 while submitting the

memorandum dated 24.10.2013 wrongly calculated the

average of the students admitted in the subject Sanskrit

and Economics during the last 3 years prior to 1.6.2003.

The said fact though was agitated by the appellant but

learned Tribunal without proper appreciation of the said

stand and the provision contained under Para 10, more

particularly proviso to Para 10(6) of the said order,

dismissed the claim vide the impugned judgment. Mr.

Das making all such submissions submitted that the

impugned order needs interference of this Court as the

claim of the appellant has been illegally rejected while

approving the claim of private Respondent No.4.

10. Mr. R.N. Mishra, learned Additional

Government Advocate on the other hand submitted that

even though the services of the private Respondent

No.4 has been approved as against the post of

Lecturer in Economics as the 4th Optional subject

pursuant to the order passed by Respondent No.1 on

20.2.2014 under Annexure-10, but no grant in aid has

been released in favour of the said private respondent

No.4 because of the pendency of the present appeal. But

it submitted by the learned counsel for the State that the

entitlement to receive block grant under G.I.A Order,

2008 is governed under Para 10 of the G.I.A Order, 2008

11. Mr. M.K. Sahoo, learned counsel appearing for

the private Respondent No.4 on the other hand

submitted that not only the Respondent Nos.1 & 2 found

the Respondent No.4 as eligible for her approval as

against the post of lecturer in Economics by holding

Economics as the fourth Optional subject, but also he

submitted that the learned Tribunal has not committed

any illegality or irregularity in upholding the said order

passed in favour of the Respondent NO.4. It is

submitted that pursuant to the order passed by

the learned Tribunal in G.I.A case No.32 of 2011,

Respondent No.2 rightly recommended the

claim of the Respondent No.4 vide memorandum

dated 13.10.2013 and in consideration of that

Respondent No.1 rightly allowed the claim vide its order

dated 20.2.2014 under Annexure-10.

12. Mr. Sahoo further submitted that even though

the claim for receipt of block grant under G.I.A Order

2008 is governed under Para 10 of the said order, but in

view of the clarification issued by the Government,

Respondent No.1 on 30.4.2012 under Annexure-12, the

claim of the Respondent No.4 was found more

admissible than the claim of the appellant. It is

submitted that in view of such clarification issued

by the Government on 30.4.2012 under Annexure-

12, Respondent No.2 while forwarding the claim vide

Memorandum dated 26.10.2013, held Respondent No.4

as entitled to get the approval in respect of the subject

Economics as the fourth optional subject. Mr. Sahoo

fairly submitted that in spite of the order of approval

issued in favour of respondent No.4, no block grant

has been released in her favour due to the challenge

made by the appellant in G.I.A Case No.87 of 2014

and the pendency of this appeal before this Court. Mr.

Sahoo further submitted that while the subject

Economics was allowed as an Optional subject when

permission and recommended was granted by the State-

Respondent, the subject Sanskrit was allowed as an

optional subject w.e.f the Academic Session 1994-95

vide order dated 26.8.2014 in lieu of the optional subject

Oriya. Mr. Sahoo accordingly submitted that by

committing fraud the subject Sanskrit was allowed as an

optional subject in place of the subject Oriya.

13. In support of such submission, Mr. Sahoo relied

on the decision of the Hon'ble Apex Court reported in

(2010) 8 SCC page 383 and (2003) 8 SCC page 319.

M. Sahoo also relied on a decision of this Court in the

case of Anusaya Gadanayak Vs. The Collector,

Dhenkanal & Others reported in 2020(I) ILR-CUT-498.

14. By making all these submission, learned counsel

for Respondent No.4 submitted that the appellant has

got no case in her favour and there is no illegality or

irregularity in the impugned judgment passed by the

learned Tribunal.

15. Mr. Das, learned counsel for the

appellant on the other hand relied on a decision of the

Hon'ble Apex Court reported in the case of Rajendra

Diwan v. Pradeep Kumar Ranibala and Another

reported in (2019) 20 Supreme Court Cases 143. In

Para 61 of the said judgment, Hon'ble Apex Court has

held as follows:-

"61. An appeal, on the other hand, is a continuation of the original proceedings. Where there is a statutory appeal from an appellate order of the Tribunal, the appellate court is obliged to rehear the case, re- appreciate and re-analyse the evidence on record, adjudicate the correctness of the order impugned and correct errors both of fact and of law, that the Tribunal may have made."

16. The judgments relied on by Mr. Sahoo, as per the

considered view of this Court are not germane to the issue

involved in the present case.

17. Heard learned counsel for the parties at length.

Perused the materials available on record.

18. This Court after going through the same finds

that the claim for release of Block Grant as per G.I.A

Order, 2008 is governed under the provision

contained under Para 10 of the said order. But this Court

finds that the learned Tribunal while deciding the

issue has relied on, a clarification issued by the

Government on 30.4.2012 under Annexure-12. Since

G.I.A Order, 2008 is framed under the provisions of Orissa

Education Act, 1969, any clarification issued in

contravention to the provision contained in the said order

cannot supersede the statutory provision, in view of the

decision reported in AIR 1989 S.C 1133. Hon'ble Court in

Para 6 of the said judgment has held as follows:

"6. The aforesaid Rules expressly provided power to the Government to grant more chances for passing the examination in any individual case or in class of cases. Under the 1955 Rules, the Government preserved power to dispense with, or relax the requirements of any rule regulating "the conditions of service of government servants; or of any class thereof". In the exercise of this power, the Government could dispense or relax the operation of any rule, if it causes undue hardships in any particular case. It is need- less to state that this power includes the power to relax the conditions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion. The High Court, however, has observed that the scope of this power has been constrained by the circular dated 15th January, 1962. The circular states that the 1955 Rules permitting relaxation cannot be utilized to relax the rules which regulate conditions of service. It further states that the scope of the Rules should be limited only to

matters relating to travel- ling allowance, leave, etc. But this appears to be an exercise in vain. The circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article 309 of the Constitution. The Government could not have restricted the operation of the statutory rules by issuing the executive instruction. The executive instruction may supplement but not supplant the statutory rules. The High Court was in error in ignoring this well accepted principle."

19. Therefore, this Court in view of the admitted

illegality committed by the learned Tribunal by relying on

the clarification issued on 30.4.2012, instead of the

statutory provision contained in the para 10 of the G.I.A

Order, 2008, held that learned Tribunal has not applied

its judicial mind while deciding the claim of the appellant

vis-à-vis Respondent No.4. Since in spite of the approval

made in favour of Respondent No.4, no Block Grant has

been released as yet, this Court deems it fit and proper to

set aside the impugned judgment dated 24.8.2017 under

Annexure-13, passed in G.I.A Case No.87 of 2014 and

remit the matter for fresh adjudication. While remitting