Full Judgment
I.M. Quddusi, J.
1. O.J.C. No. 1361 of 2001 was filed by the Petitioner praying for a direction to the Opposite Parties to regularize his services with effect from 12.12.1986 and for a direction to the Opposite Parties 1 and 2 to sanction grants in his favour for the duration commencing from the period when the 3rd post of lecturer in Mathematics matured to receive grants i.e. from 1.6.1988 in conformity with the order of the State Government vide Annexures-7 and 8 series which had been passed in respect of other lecturers who were similarly situated like the Petitioner and to declare the regularization of the service of the Petitioner with effect from 17.12.1989 instead of 12.12.1986 as illegal, arbitrary and discriminatory and to pay him salary at the appropriate rate along with increments as accrued to him within a time to be fixed by the Court. During the pendency of the said Writ Petition, he filed Misc. Case No. 7889 of 2001 praying for a direction to the Opposite Parties to release the Grant-in-aid in his favour with effect from the date of coming into force of the Aided Educational Institutions (Appointment of Teachers Validation) Act, 1998 without prejudice to his rights and contention in the said Writ Petition. Relying on the decision of the Apex Court in State of Orissa and Anr. v. Pratap Kumar Nayak and Anr. 93 (2002) CLT 79 (SC) in which it was held that the employees whose services stood validated by the Validation Order ipso facto will not be entitled to the grant-in-aid unless and until their case was duly considered under the provision of grant-in-aid Order read with Section 7(c) of the Amendment Act and it would therefore be necessary for the State Government to examine each and every case in accordance with prescribed procedure for such grant-in-aid, this Court by interim Orders Dated 15.4.2002 called upon the authorities to consider the case of the Petitioner under the provision of the Grant-in-aid Order read with Section 7(c) of the Amendment Act within a period of four months from the date of receipt of copy of the order without prejudice to his rights and contentions in the Writ Petition. As the said order was not complied with within the time granted, the Petitioner filed CONTC No. 355 of 2003 and by Orders Dated 1.12.2003 this Court issued notice to the Opposite Parties to show cause as to why contempt proceeding shall not be initiated against them for willful violation of the order. However, by Orders Dated 17.9.2005 the Commissioner-cum-Secretary to Government, Department of Higher Education, held that the Petitioner is not eligible to be considered under the provisions of Validation Act, 1998 as it violates Section 3(1) of the said Act since he had not continued against approved or admissible post during the period between 1.1.1985 and 31.12.1992. Further he was not eligible for validation of service and to receive grant-in-aid against the post as it violated sub-para 2(i) of Para 16 of Grant-in-aid Order 1994 for not rendering continuous service for 5 years of qualifying period of service in approved or admissible post. So holding, he cancelled the order of validation made vide Govt. Order N0. 1493/HE dated 9.1.2001 in respect of the Petitioner and cancelled the prior concurrence accorded to the approval of appointment of the Petitioner. Being aggrieved by the said order, the Petitioner has filed W.P.(C) No. 12394 of 2005.
Both the Writ Petitions were taken up together and are disposed of by this common order.
2. The brief facts of the case are that Anandpur College is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act. One Nilamani Das, who was working against the 2nd post of Lecturer in Mathematics in the said college, proceeded on leave for teacher fellowship and the Petitioner was appointed by the College on ad hoc basis in the leave vacancy and joined on 12.12.1986. His appointment was for a specific period, which was extended from time to time against the teacher fellowship vacancy. The said appointment of the Petitioner was approved by the Director, Higher Education, with a stipulation that the Lecturer posted against teacher fellowship vacancy will have no claim to continue either in same college or in any college after termination of service. The original incumbent Nilamani Das joined back in the college on 17.12.1989. Hence, the Petitioner was not allowed to continue against the 2nd post with effect from 16.12.1989. He was thereafter allowed to continue against the 4th post of Lecturer in Mathematics with effect from 17.12.1989 vide office order No. 355 dated 22.1.1990 passed by the Principal-cum-Secretary of the College pending approval of Governing. Body and creation of post in order to cope up with the increasing work-load in the department of Mathematics of the College which was approved by the Governing Body vide resolution dated 22.11.1990. In the meantime, the Principal of the College by, his letter dated 6.8.1989 requested the Director, Higher Education, Orissa to adjust the Petitioner against the 3rd post of lecturer in Mathematics but the same was not accepted. But somehow, it was shown by the institution that the Petitioner was appointed against the 3rd post of lecturer in Mathematics and his appointment was validated under the Validation Act, 1989 though he was never appointed against the 3rd post. Such irregularity was detected when records of the college in support of the claim of the Petitioner was re-verified at the time of release of salary in pursuance of the directive of the Hon'ble Apex Court dated 26.11.2001 in the case of State of Orissa v. Pratap Kumar Nayak reported in 93 (2002) CLT 79 (SC). As another candidate was sponsored by the State Selection Board against the 3rd post of lecturer of Mathematics in that institution, namely, Shri N. Mishra with effect from 13.9.1990 till 18.10.1993 and thus his appointment remained against the 4th post which was not sanctioned.
3. Learned Counsel for the Petitioner has urged that 4th post of lecturer in Mathematics is justified as per the work load given in Annexure-4 series which is the work load statement issued by the college from time to time in proforma for general colleges (for teaching posts) and the appointment of the Petitioner against 4th post is liable to be validated as it is covered under the Validation Act. Therefore, the findings of the State Government that 4th post of lecturer in Mathematics against which the Petitioner was appointed and joined on 17.12.1989 was not created to the college when the service of the Petitioner was validated is not correct. He has further submitted that 100 such equally situated persons are continuing against the admissible posts which have not only been validated but grant-in-aid has been released. Therefore, the rejection of the claim of the Petitioner for validation is arbitrary and discriminatory.
4. It is a fact that against the 3rd post of lecturer in Mathematics in Anandapur College a regular incumbent was appointed being sponsored by the Selection Board who continued till 8.10.1993. The Governing Body passed a resolution to adjust the Petitioner against the 3rd post of lecturer in Mathematics with effect from 9.10.1993 vide resolution of the Governing Body dated 31.8.1996 which was much later than the appointment of the incumbent sponsored by the Service Selection Board. That post was a Government created post and was to be filled up with due permission of the competent authority and, therefore, there was no question of regularization of the Petitioner in the grant-in- aid against the 3rd post. However, a perusal of Annexure-4 series, which is the statement for teaching post, shows the number of posts as per work load of lecturers and others. It was given in the statement as it stood on 31.12.1990 that the number of post warranted as per work load was 2 and the post existing was shown as 3 which shows that there was no fourth post of lecturer in Mathematics in existence under grant-in-aid. Therefore, it is not within the scope of judicial review to issue mandamus to the State Government to create post according to the work load as it is within the domain of the State Government to create number of posts keeping in view its financial position. However, in case similarly circumstanced persons have been granted grant-in-aid and their appointments have been validated after creation of posts, the case of the Petitioner is liable to be considered as the Petitioner has not given any specific instance by which it could be seen by this Court as to whether in fact the post according to the work load were created by the State Government to validate the service of the teachers working against post not under grant-in-aid.
5. In the result, the Writ Petitions are disposed of with the above direction.
A.K. Parichha, J.
6. I agree.