A.K. Samantaray, J.
1. In this writ petition under Articles 226 and 227 of the Constitution of India the petitioner challenges the Government order under Annexure-16 disallowing approval of her appointment and payment of Grant-in-aid from the date of her appointment to the post of lecturer in English in Tangi Mahavidyalaya, Kotsahi, in the district of Cuttack and has prayed for quashment of the said annexure and for issue of a direction mandating the opposite parties to approve her appointment and to pay her Grant-in-aid from the date of her appointment, i.e., from 1.11.1991.
2. The case of the petitioner as averred in the writ petition is that she is a lecturer in English of Tangi Mahavidyalaya, Kotsahi which was affiliated to the Utkal University vide Annexure-1 in Intermediate Arts with 65 seats in English and other subjects. On the formation of the Council of Higher Secondary Education, Orissa, the Council under Annexure-2 dated 31.3.1984 extended its affiliation for Higher Secondary Course in Arts stream from the academic session 1983-84 with 96 seats. The said college got concurrence for having three year Degree Course in Arts under Annexure-3 from the academic session 1990-91 and 1991-92 by the State Government with 128 seats in English and M.I.L. (Oriya) as compulsory subjects besides other optional subjects. The Utkal University granted affiliation at +3 Degree Arts stream of Tangi Mahavidyalaya from the academic session 1990-91 with 128 seats. The petitioner relying on the aforementioned documents has stated that Tangi Mahavidyalaya is a college having both +2 and +3 wings. The petitioner admittedly was appointed by the resolution of the Governing Body of the college dated 7.9.1991 as a lecturer in English by the management of the Tangi Mahavidyalaya under Annexure-5 and she joined on 1.11.1991 against the post of lecturer in English vide Annexure-6. It is not disputed that Tangi Mahavidyalaya was put into Grant-in-aid fold as per the communication made by the Director of Higher Education, Orissa (O.P. No. 2) under letter No. 11557 dated 22.2.1990 with effect from 1.6.1988. It is stated that, therefore, when the petitioner was appointed by the Governing Body, Tangi Mahavidyalaya was an Aided Educational Institution within the meaning of Section 3(b) of Orissa Education Act, 1969 as amended from time to time. It is stated that while the institution was so continuing and some of the employees of the institution were receiving the salary component in accordance with Rule 9 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, The Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 (for short the 'Grant-in-Aid Order, 1994) came into force providing the modality as well as the procedures for releasing the Grant-in-aid in favour of the employees of the Aided Educational Institutions. Thereafter, the Orissa Aided Educational Institutions (Appointment of Lecturers Validation) Act, 1998 (for short the 'Validation Act, 1998) was enacted by the Legislature so as to validate the regular appointments made by the Governing Body during the period 1.1.1985 to 31.12.1992. In view of the above admitted position of law, the petitioner has sought for relief in the present writ petition for her approval to the 2nd post of Lecturer in English in accordance with the provisions of Validation Act, 1998 and, therefore, she has claimed the salary component on completion of five years of service at the rate 1/3rd of salary component, 2/3rd after seven years and full salary cost after nine years of appointment in accordance with the Grant-in-aid principle in consonance with the provisions of Grant-in-Aid Order, 1994.
2. Rule being issued the opposite parties entered appearance and O.P. No. 2 filed counter affidavit and in the said counter affidavit O.P. No. 2 has taken a stand that since the petitioner was appointed at a point of time when the college was an aided one, her appointment is irregular. It is stated in the counter that the +3 Degree Course having opened in the institution from the academic session 1991 being not an aided one, the workload of the college for approval of any post is to be adjudged taking into account the +3 wing workload only. It is stated further that the Validation Act, 1998 would have no application since the appointment of the petitioner was made against a non-admissible post. The +3 wing of the college having been declared and aided institution by the Government, on 1.1.2004, therefore, the order passed by the State Government under Annexure-16 is just and legal, it is asserted.
3. A rejoinder affidavit was filed by the petitioner to the counter affidavit of O.P. No. 2, wherein it has been indicated that Tangi Mahavidyalaya being a composite college having +2 and +3 wings, the workload of the college was to be assessed in accordance with Rule 4 of the Grand-in-Aid Order it is stated that Lecturer in English in 2nd post was not only admissible nut there was justification for appointment taking into consideration the said workload and accordingly the Governing Body created the post and appointed the petitioner.The petitioner in the rejoinder has given the cases of similarly situated lecturers of other aided colleges having been brought into the fold of Grant-in-aid extending the benefit of Validation Act, which has been denied to the petitioner and she has termed this as illegal and bad in law.
4. The O.P. No. 2 by way of reply to the rejoinder filed by the petitioner has submitted an affidavit indicating the workload of the +2 stream so as to justify that the 2nd post was not at all warranted to the college when the petitioner was appointed.
5. From the afore-mentioned pleading in the writ petition, counter affidavit and rejoinder of the parties the points that have to be seen are whether the 2nd post of Lecturer in English was admissible to the college at the time of appointment of the petitioner, whether the approval of the appointment of the petitioner was to be validated in accordance with the Validation Act and whether the order passed by the O.P. No. 1 on 2.5.2001 under Annexure-16 is correct or not.
6. In this connection, we have looked into the provisions of Grant-in-Aid Order, 1994. Rule 4 of the Grant-in-Aid Order prescribes three categories of institutions in existence when 1994 Grant-in-Aid Order came into force. This order, inter alia, prescribes that Non-Government Educational Institutions and approved posts in such institutions which have received Grant-in-aid from the Government or in respect of which Grant-in-aid has been sanctioned by the Government prior to commencement of Amendment Act are to be treated as Category-I institution. It further stipulates that other posts in Non-Government Educational Institutions covered under Category-I(1) which were admissible on the basis of workload and prevalent yardstick had been filled up prior to commencement of the Amendment Act, but in respect of which no Grant-in-aid had been sanctioned are also covered under Category-I institutions. It is pertinent to note here that the Amendment Act came in the year 1994. Rule 9(c) of the Grant-in-Aid Order, 1994 categorically states that the workload to be determined for admissibility of a post by computing the total workload on account of Degree Course and Higher Secondary course in all the streams conducted in that institution. In view of this provision of the Grant-in-Aid Order as amended above, as the petitioner's college, i.e., Tangi Mahavidyalaya was having +2 and +3 stream with the approval of the State Government and the institution being an aided institution before the Amended Act came into force and further since the petitioner was appointed before the coming into force the Amended Act and also the existence of the Grant-in-Aid Order, 1994 there can be no dispute, in our view, that Tangi Mahavidyalaya would come within the ambit of Category-I institution and therefore, the admissibility of the post in any discipline are to be adjudged computing the workload of both +2 and +3 stream. It was submitted by learned Counsel for the petitioner and it is also revealed from Annexure-17 that the 2nd post of Lecturer in English is admissible and the same was justified to the college. This stand has been taken in the writ petition and the same has nowhere been denied by O.P. No. 2 in the counter affidavit nor in the additional affidavit filed in reply to the rejoinder affidavit of the petitioner. From a reading of the affidavit filed by O.P. No. 2 it is apparent that O.P. No. 2 has not taken into account the workload of +3 stream and has rejected the claim of the petitioner only on the basis of the workload of +2 wing. This, in our view, and in the facts and circumstances is not sustainable in the eye of law. Rather, the 2nd post of Lecturer in English was admissible and it was justified in the college in question when the petitioner was appointed and for that the Order of the Government under challenge, vide Annexure-16 appears to be incorrect and the same has been passed without taking into consideration the aforementioned facts and without application of mind.
7. The second plank of argument that was advanced on behalf of the petitioner is about validating the services of the petitioner in pursuance to the Validation Act, 1998. On a bare reading ot the said Validation Act, it is found that the Lecturers of aided colleges who have been appointed on temporary basis against the approved and admissible post by the concerned Governing Body during the period between 1.1.1985 and 31.12.1992 and are continuing as such having the requisite qualification prescribed to hold such post and are in the pay roll of the concerned college against the said approved and admissible post, as the case maybe, shall be deemed to have been validly and regularly appointed. In the case at hand, as we find undisputedly, when the petitioner was appointed the college was an aided college. The petitioner was admittedly appointed on 1.11.1991 having the requisite qualification. She is continuing in the said college right from her date of appointment till date and she is in the pay roll of the college. The post to which she was appointed is an admissible post as we have observed earlier in the preceding paragraphs. In that view of the matter, she fulfils all the requirements necessary for attracting the provisions of Validation Act. We have also found that O.P. No. 1 has not considered the case of the petitioner in its proper perspective and has rejected her case on 2.5.2001 under Annexure-16.
8. In view of our above findings on analysis of the facts and circumstances and the prevailing legal position, we are of the considered view that the order passed under Annexure-16 is not at all sustainable in the eye of law and therefore, while allowing the writ petition of the petitioner we quash the said Annexure-16 mandating the opposite parties, specifically O.P. No. 1, to accord approval to the appointment of the petitioner as Lecturer in English in 2nd post with effect from the date of her appointment, i.e., 1.11.1991, in accordance with the provisions of Validation Act, 1998. The petitioner shall be entitled to her salary component in accordance with Sub-section (2) of Section 3 of the Validation Act, 1998 with effect from the date of commencement of the said Act. This order shall be given effect to within six months from the date of receipt of the same.
9. The writ petition is allowed. However, we make no order as to cost.
B.P. Das, J.
10. I agree.