HIGH COURT OF ORISSA: CUTTACK. F.A.O. NOs.401 of 2007 and 194 of 2008 From the judgment dated 9.8.2007 passed by Shri L.K. Mishra, Presiding Officer, State Education Tribunal, Orissa, Bhubaneswar in G.I.A. Case No.172 of 2004. ( In FAO No.401 of 2007 ) Smt. Niharbala Tripathy …… Appellant - Versus- State of Orissa and others …… Respondents For Appellant : M/s. H.B. Dash and P.K. Nayak For Respondents : A.G.A. (R-1,2 & 3) M/s. B.K. Pattanaik & A.C. Gahana (R-5) M/s. R.K. Pradhan (R-6) ( In FAO No.194 of 2008 ) State of Orissa and others …… Appellant - versus- Sanghamitra Nayak and others …… Respondents For appellants : A.G.A. For Respondents : M/s. R.K. Pradhan & T. Rout (R-1) Mr. B.K. Pattnaik (R-2 & 3) Mr. H.B. Dash (R-4) --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing – 4.11.2011 :: Date of judgment –16.11.2011 B.K. PATEL, J. Both the appeals under Section 24-C of Orissa Education Act, 1969 (for short ‘the Act’) are directed against the judgment dated 9.8.2007 passed by the Presiding Officer, State Education Tribunal, Orissa, Bhubaneswar (for short ‘the Tribunal’) in G.I.A. Case No.172 of 2004. 2. G.I.A. Case No.172 of 2004 was filed under Section 24-B of the Act by Sanghamitra for approval of her appointment in the second post of lecturer in Political Science in +2 stream of Biren Mitra Memorial Women’s College and for grant-in-aid w.e.f. 1.1.2004 against the similar claim of Niharbala who is the appellant in FAO No.401 of 2007 and respondent no.4 in FAO No.194 of 2008 filed by State of Orissa and its functionaries representing Department of Higher Education. 3. Biren Mitra Memorial Women’s College, earlier known as City Women’s College, was established in the year 1981. The College is an aided educational institution as defined under Section 3(b) of the Act. It was accorded Government concurrence for +2 Arts with 126 seats from the academic session 1984-85 which was increased to 256 seats from the academic session 1990-91. The college got permanent recognition for +2 Arts with 256 seats from the academic session 2003- 04. Affiliation of the college for +3 Arts was given from the academic session 1990-91 with 128 seats. Political Science was one of the optional subjects for both +2 as well as +3 Arts streams. 4. Sanghamitra’s case is that she was duly selected by the Selection Board and was appointed to the second post of lecturer in Political Science in the +2 stream on 11.10.1990. She joined on and is 2 continuing in the post since 16.11.1990. Her further case is that by resolution dated 10.11.1990 which is Annexure-2 to the application under Section 24-B of the Act before the Tribunal, the Governing Body of the college had approved her appointment against +2 stream. After coming into force of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 (for short ‘the GIA Order of 1994’), proposal with relevant records was submitted by the college for grant-in-aid and the college was notified to receive block grant as +2 college in terms of the GIA Order of 1994. Consequential order was passed by the Director, High Education extending the benefit of block grant for teaching and non-teaching staff. The Regional Director, Higher Education on 12.12.2004 recommended Sanghamitra’s name against the second post of lecturer in Political Science in +2 stream. The recommendation having not been considered, she filed G.I.A. Case No.172 of 2004. 5. Governing Body and Principal of the college filed joint counter claiming that one Minakshi was the only lecturer who was receiving grant-in-aid in the form of block grant from the academic session 2003- 04 against the first post of lecturer in Political Science and an interview was conducted on 6.9.1990 by the Selection Board wherein Niharbala had secured first position and Sanghamitra had secured second position. Accordingly, appointment letter was issued to Niharbala on 10.10.1990 and she joined on 15.10.1990 as the lecturer in Political 3 Science. Sanghamitra on the other hand joined as the next lecturer in Political Science on 16.11.1990. In view of their respective position in the merit list in the selection and dates of joining, Niharbala is senior to Sanghamitra. According to them, the college is a women’s college with +2 and +3 wings functioning in one building under one roof and having one Governing Body. Therefore, it is a composite college without separation of +2 and +3 wings. In view of composite nature of the college, recommendation of the Regional Director, Education is not acceptable. Letters issued to Sanghamitra stating that she was asked to work in +2 wing was simply an internal arrangement. Niharbala filed a separate counter making averments similar to the Governing Body and Principal of the college. State of Orissa through Commissioner-cum-Secretary, Department of Higher Education as well as Director, Higher Education filed joint counter. Their stand is that only one post of lecturer in Political Science being admissible to the college as per the yardstick prescribed in the G.I.A. Order of 1994, applicant holding the third post of lecturer in Political Science in the college was not considered for grant-in-aid. It was further claimed that in the proposal furnished by the college authorities, Sanghamitra was shown to be holding the third post of lecturer in Political Science and not the second post as claimed by her. 4 The Regional Director, High Education did not file any counter. 6. Considering the materials on record upon reference to respective contentions, the Tribunal allowed G.I.A. Case No.172 of 2004, and directed the Governing Body of the college to send proposal in favour of Sanghamitra. Being aggrieved, appeals have been filed. 7. It was submitted by the learned counsel appearing for the appellants in both the appeals as well as learned counsel appearing for the Governing Body and the Principal of the College that Biren Mitra Memorial Women’s College has one Governing Body all along. Both the +2 and +3 streams function in the same building. Therefore, the College is a composite College. It was further submitted that both Niharbala and Sanghamitra had applied for appointment in response to advertisement for the post of Lecturer in Political Science in the College. In the selection Niharbala stood first and Sanghamitra stood second. For the purpose of internal arrangement, in the resolution dated 10.11.1990 of the Governing Body, it was decided that Sanghamitra would work in the +2 stream and Niharbala in the +3 stream of the College. It was argued that in spite of such resolution relating to internal arrangement, position of Niharbala in the merit list remained 5 unaffected. Also, she had joined in the College earlier to Sanghamitra. Both of them were teaching in +2 as well as +3 classes. Regional Director recommended Sanghamitra’s case for grant-in-aid on the basis of resolution of the Governing Body which had been made only for the purpose of internal arrangement for which recommendation was not accepted by the Government. Tribunal committed error in placing undue reliance on the resolution of the Governing Body. Tribunal ought to have accepted stand of the College that it was Niharbala who had been appointed to the second post of Political Science in the +2 stream of the College. Learned counsel for the State appearing for the appellants in F.A.O.No.194 of 2008 further submitted that in view of their respective position in the merit list prepared by the selection committee as well as dates of joining there was no basis for the Tribunal to hold that Sanghamitra was holding second post of Lecturer in Political Science in +2 stream. Rather, it is obvious that Niharbala joined in the second post of Lecturer in Political Science in the College. Recommendation of the Regional Director was not in accordance with the grant-in-aid orders of the years 1994 and 2004. Sanghamitra was selected and appointed to the post of third post of Lecturer in Political Science of the College which post was not a sanctioned post being beyond the prescribed yardstick. 6 8. In reply, learned counsel for the applicant before the Tribunal contended that notwithstanding their respective position in the merit list prepared by the selection committee, Governing Body of the College took a conscious decision to appoint Sanghamitra to the second post of Lecturer in Political Science in +2 stream and Niharbala to the first post of Lecturer in Political Science in +3 stream of the College. Both of them joined the college accepting the terms of appointment. Learned counsel brought to the notice of the Court counter-affidavit before the Tribunal filed by the Governing Body and Principal of the College annexing appointment letter No.164 dated 10.11.1990 as Annexure-B-1/4 in which it has been specifically stated that Sanghamitra was selected for appointment to the second post of Lecturer in Political Science. It was pointed out that in accordance with the resolution of the Governing Body and the appointment letter Sanghamitra is working in the second post of Lecturer in Political Science. Upon verification of the records Regional Director, Higher Education duly recommended name of Sanghamitra for grant-in-aid. Regional Director is an instrumentality of the State. State Government should not be allowed to speak in different voices through different instrumentalities. Tribunal rightly accepted Sanghamitra’s claim. 9. Learned counsel for the parties were heard at length. Record in G.I.A. case was also produced for scrutiny. 7 10. Admittedly, in response to advertisement for the posts of Lecturers of the College, Niharbala, Sanghamitra and others submitted applications for appointment to the posts of Lecturers in Political Science and they were interviewed by the selection committee. Also there is no dispute from any quarters that Niharbala secured more marks in the selection process and was assigned higher position in the merit list than Sanghamitra. The College has two distinct wings; one for +2 students and other for +3 students. Governing Body of the college in its resolution dated 10.12.1990 took explicit decision for appointment of Niharbala in the +3 wing and Sanghamitra in the +2 wing as Lecturers in Political Science with effect from 11.10.1990 and 16.11.1990 respectively. Perusal of the resolution dated 10.12.1990 further reveals that lecturers selected and appointed in other subjects were also specifically assigned to different posts in +2 and +3 streams. There is no basis to dismiss the resolution by terming the same to be internal arrangement simpliciter. Resolution has never been assailed. On the contrary, resolution appears to be the very basis of appointment of the two private parties to the posts of Lecturers in Political Science. Director, Higher Education obviously made recommendation in favour of Sanghamitra upon verification of records of the College including resolution of the Governing Body. Action of the Director, Higher Education as well as Tribunal’s order is further fortified by the contents of the appointment letter No. 164 dated 10.11.1990 issued from the College to Sanghamitra. The letter was filed before the Tribunal by the 8 Governing Body and Principal of the College. They cannot be allowed to make a volte face by denying the import of the contents of the appointment letter, wherein it has been specifically mentioned that Sanghamitra was selected for and appointed to the second post of Lecturer in Political Science. Thus, the two private parties to the present dispute, upon their appointment, were assigned to work under two different wings of the College. Appellants in both the appeals and the Governing Body cannot be allowed to drive any benefit out of subsequent events not in consonance with the Resolution and the appointment letter issued pursuant thereto. No doubt both the wings were under the same college. However, learned counsel for the Governing Body as well as learned counsel appearing for the appellant in FAO No.401 of 2007 have filed before this Court guidelines directing separation of the two wings; recognizing the +2 wings of the colleges as junior colleges and +3 wings as degree colleges; and assigning +2 wings to schools pursuant to the recommendations in the new national educational policy. Resolution of the Governing Body and appointment letter issued to Sanghamitra cannot be brushed aside as extraneous. There is no question of inter-se seniority between them as they belong to two different streams of the College. Dispute between them is confined to +2 stream which has been recognized as aided College. Considering the fact that the applicant before the Tribunal is a lecturer in +2 College which is aided, whereas Niharbala is an employee of +3 College which, 9 as has been observed by the Tribunal, was yet to be aided, there appears no infirmity in the impugned order. 11. Both the appeals have no merit and are, therefore, dismissed. ….……………… B.K. Patel, J. Orissa High Court, Cuttack, Dated the 16th November,2011/B.Jhankar 10