State Of Orissa & Ors vs Saroj Kumar Jena

State of Orissa & Ors. ...... Appellants

Versus

Saroj Kumar Jena ...... Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order

dated 5.8.2005 of the High Court of Orissa at Cuttack in O.J.C. No.

11122/1999, by which the High Court has issued directions to the

State Govt. to grant particular pay scales with reference to particular

dates in the grade of Upper Division Clerk and Head Clerk, to the

respondent.

2. Facts and circumstances giving rise to this appeal are that the

respondent stood appointed as a Lower Division Clerk (hereinafter

called as LDC) by the governing body of Mahanga Puspagiri

Mahavidyalaya, Irakana, Cuttack, on 18.8.1985. His appointment was

duly approved by the Director of Higher Education (hereafter called

appellant No.2), vide order dated 6.11.1990. The said respondent was

promoted to the post of Upper Division Clerk (hereinafter called

UDC) w.e.f. 3.3.1990 and thereafter to the post of Head Clerk w.e.f.

2.4.1992. In spite of the fact that his appointment and promotion had

been duly approved by the appellant No.2, being the statutory

authority, his pay was not fixed in the pay scales meant for the

respective promotional post.

3. The respondent made a representation to fix his pay in the pay

scales of the posts of UDC and Head Clerk. However, the said

representation was rejected vide order dated 20.3.1999, in view of the

fact that he did not possess the requisite qualifications i.e. he had not

passed the accounts examination, as required under the Orissa Non-

Government Aided College Ministerial Services (Method of

Recruitment and Conditions of Service) Rules, 1999 (hereinafter

called Rules 1999).

2 4. Being aggrieved, the respondent approached the High Court by

filing the writ petition No.11122/1999, which has been allowed vide

impugned judgment and order dated 5.8.2005. Hence, this appeal.

5. Mrs. Kirti Renu Mishra, learned counsel appearing for the

appellants, has submitted that the respondent did not fulfill the

requisite qualification as per the Rules 1999. For this reason, the High

Court was not justified for granting the said relief. According to Mrs.

Mishra, no new post could have been created without the prior

approval of the appellant No.2. In the instant case, as no post had been

sanctioned, the appointment of the respondent is totally illegal and

thus, the impugned judgment and order is liable to be set aside.

6. On the contrary, Shri V.S. Raju, learned counsel appearing for

the respondent, has opposed the appeal contending that the High

Court has disposed of the writ petition following its earlier judgment

in Rajendra Prasad Singh v. State of Orissa, 93 (2002) CLT 346

and in view of the statement made by the State counsel that the matter

was squarely covered by the said judgment. Thus, the appeal lacks

merit and is liable to be dismissed.

3 7. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

8. Admittedly, the Rules 1999 could not be made applicable with

retrospective effect and in case the respondent had been appointed and

promoted further to the posts of UDC and Head Clerk and those

promotions have been duly approved by the appellant No.2, no fault

can be found with the impugned judgment and order. We also find no

force in the submission made by Mrs. Mishra that the respondent

could not be appointed as no sanctioned post was available and prior

approval had not been taken from the appellant No.2 for making the

appointment of the respondent. Thus, he stood appointed to a non

existing post. The Circular issued by the Education & Youth Services

Department, Government of Orissa, dated 27.5.1978 contained a

clause as under:

"xx xx xx

Prior concurrence of Govt. should be obtained for

increase in seats and opening of new subjects and

creation of new posts." (Emphasis added)

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The Letter dated 6.11.1990 granting approval by the appellant

No.2 reads as under:

"In pursuance of G.O. No.46209/H, and

No.46210/H dated 18.1.85 approval is hereby accorded

provisionally to appoint and adjustment of Sri Saroj

Kumar Jena, L.D.C., Mahanga Puspagiri

Mahavidyalaya, Erakana, Dist. Cuttack with effect from

1.3.90 against the vacancy, caused due to resignation

tendered by Sri Khageswar Pradhan on 28.2.90.

Sri Jena shall be entitled to draw 1/3rd grant with

effect from 1.3.90 to 31.5.90 and 2/3rd grant with effect

from 1.6.90 in the scale of Rs.780-1160/-. The post

L.D.C. has been admitted to 1/3rd grant in aid from

1.6.88." (Emphasis added)

It is evident from the aforesaid letter of approval dated

6.11.1990 that the respondent had not been appointed on a non

existing/non-sanctioned post. The post became vacant due to the

resignation tendered by Sri Khageswar Pradhan on 28.2.1990.

Therefore, the post was available and the provisions of the Circular

dated 27.5.1978 could not be made applicable to the case at hand.

9. In view of the above we do not find force in the appeal. The

appeal is accordingly dismissed. No costs.

However, in the facts and circumstances of the case, in case the

pay scale of the respondent had not been fixed as directed by the High

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Court, all the formalities shall be completed in compliance with the

High Court's judgment within a period of three months from today.

Arrears, if any, should be paid to him within a period of three months

thereafter.

.............................J.

(P. SATHASIVAM)

.............................J.

(Dr. B.S. CHAUHAN)

New Delhi,

February 9, 2011

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