B. Panigrahi, J.
1. In this writ petition the petitioner has challenged the legality, propriety and validity of the order passed by opp. party No. 2 dated 4th July, 1998 by which he found the appointment of opp. party No. 4 in the post of Clerk-cum-Typist as valid. Further he observed that the claim of the writ petitioner for the post of Clerk-cum-Typist is neither sustainable nor valid in eye of law.
2. The petitioner was undisputedly appointed as a Clerk in Nabaghan College, Karanjadia within Bhadrak district with effect from 8.7.1986. It has been, inter alia, claimed that by the time petitioner was appointed as a Clerk, the yardstick was justifying his appointment. The opp. party No. 4 was appointed as a Clerk-cum-Typist about one year after i.e. on 5.8.1987. It has been, inter alia, claimed by the petitioner that the opp. party No. 4 has never worked nor discharged his duties either as a Clerk or Typist in the College. The College in question has in the mean time received grant-in-aid with effect from 1.6.1994 and the order of the Government was published in Official Gazette with effect from 6.12.1994 whereby and where under the College was declared to be entitled to receive grant-in- aid. it was stipulated therein that the staffing pattern of a junior College has been changed to one post of a Junior Clerk- cum-Typist.
3. It is stated in the application that since opp. party No. 4 was the cousin of the then Secretary Dhruba Ch. Palei. therefore opp.party No. 4 in collusion with the then Secretary manipulated to secure such appointment although he never worked in the institution. Petitioner filed a case in this Court earlier in O.J.C. No. 2651 of 1996 claiming that his appointment should be declared valid and further he is entitled to receive salary against the post of Junior Clerk-cum-Typist and in the said case opp. party No. 2 was directed to decide the inter se claim between the petitioner vis-a-vis opp. party No. 4 to the said post.
4. It has further transpired from the stand taken by petitioner that as per the Higher Secondary Regulation 1992 the appointment of petitioner was valid as it is indicated in Appendix- 1 that the ministerial staff would consist of :
(i) One U.D. Clerk upto the strength of 250
(ii) One L.D. Clerk.
(iii) One L.D. Clerk-cum-Typist
But the staffing pattern was drastically reduced by virtue of the Orissa (Non-Government College. Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 published in the official Gazette on 6.12.1994. The petitioner has submitted that the provision of the Grant-in-Aid Order in 1994 has no application as he was appointed previously in terms of the yardstick. Much stress has been relied on Rule 4 of the Orissa Grant-in-Aid Orders. 1994 which is extracted below.
'For the purpose of this order, Non-Government Educational institutions specified in sub-paras (1) and (2) of para -3 and the posts in such institutions shall be classified into the following categories, namely : A- Category-1 (i) - Non-Government Educational Institutions and approved posts in such institutions which have received grant-in-aid from Government or in respect of which Grant- in-aid has been sanctioned by Government prior to the commencement of the Amendment Act.
(ii) Other posts in Non-Government Educational Institutions covered under category (i) which were admissible on the basis of work load and prevalent yardstick and had been filled up prior to commencement of the amendment Act, but in respect of which no grant-in-aid had been sanctioned.'
It is submitted that sub-rule (B) (i) (a) of Rule 4 of the aforesaid Grant-in-Aid order is applicable to the present case.
5. Opp. parties 1 and 2 have filed counter to the writ petition in which they have inter alia pleaded that the opp. party No. 4 was duly appointed as Junior Clerk-cum-Typist on 3.7.1987 and he joined in the said post on 5.8.1987. It is not in dispute that the petitioner joined as a Clerk on 8.7.1987. As per Rule 9(B) (i) (a) a post in a non-Government Educational Institution coming under category-I for which no grant-in-aid had been sanctioned prior to commencement of the Amendment Act if such post was admissible as per work-load and yardstick prevalent prior to commencement of the Amendment Act, it must be filled up according to the provisions of the preamending Act.
6. On a careful reading of the provisions it appears to us that the petitioner was appointed one year prior to the appointment of opp. party No. 4 in the post of Clerk. The strength of the institution was quite justified for appointment of a Clerk for which the proposal was sent to opp. party No. 2 for approval of the appointment of the petitioner, prior to grant-in-aid order came into force. The college in question comes under Rule 4- A Category-I (ii) of the aforesaid Order, 1994.
7. As per the Orissa (Non-Government College, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 (hereinafter referred to as 'Grant-in-Aid Order, 1994' the College having students strength of 250 is entitled to one Junior Clerk-cum-Typist. It is further stated that the College in question comes under the category-II (ii) of Rule 4 of the Grant-in-Aid Order. 1994 and therefore. it is entitled to one post of Junior Clerk-cum-Typist.
In this factual backdrop, first of all it has to be decided whether the College in question comes under Category-I (i) of the aforesaid Grant-in-Aid Order, 1994.
8. On a careful consideration of the provisions of Rule 4-A Cat egory-l(i). we are of the firm opinion that the College in question was eligible to receive Grant-in-Aid prior to the aforesaid Grant-in Aid Rules. 1994 came into force therefore. the petitioner's contention appears to be well founded. Then again, under Rule 9 (2) (A) the post in respect of which approval is sought has been notified under an Aided Educational Institution, therefore, approval must be accorded to such post. Therefore, the Director of Higher Education, Orissa, opp. party No. 2 could not have ignored the petitioner's appointment, as against opp. party No. 4.
9. Mr. Misra, learned counsel appearing for the petitioner has relied upon a decision of the Supreme Court in the case of Simanchal Panda v. State of Orissa and Ors., reported in (2002) 2 Supreme Court Cases 669 wherein it has been held that approval to the appointment of a Junior to the detriment of a senior would result in grave and substantial injustice. The petitioner's appointment was earlier to opp. party No. 4. The distinction of the post is immaterial whether the petitioner is working as Lower Division Clerk or L.D. Clerk-cum-Typist as it is significant to note as to what type of work the person was discharging at the time of his employment. Whether the employee was discharging the duties as a Clerk-cum Typist or simply working as a L.D. Clerk in the establishment is immaterial. But the fact remains that the petitioner was working in both capacity. In that view of the matter, the Hon'ble apex Court held that the persons who were acquainted with that type of work should be given due protection irrespective of the nomenclature of the posts. The Hon'ble Supreme Court in no uncertain term has mandated that if a junior is allowed to work against the claim of the senior, then it may perpetuate an anomalous position of justifying approval to the appointment of a junior to the detriment of a senior resulting in grave and substantial injustice. Consequently, we are, however of the view that the petitioner's claim has to be accepted as against opp. party No. 4
10. Accordingly, we hereby direct opp. parties 1 and 2 to approve the petitioner's appointment in the post of Junior Clerk-cum-Typist in the College in question. However, we keep it open to the authority to approve the other posts, if the staffing pattern so requires and if the authorities feel it justifiable, they may also approve the appointment of opp. party No. 4. and in that case they are free to take their own decision, but not to the detriment of the petitioner.
With the above direction, the writ petition succeeds and the order in Annexure-6 dated 25.3.1998 is quashed.
P.K. Misra, J.
I agree.