State Of Orissa & Anr vs Mamata Mohanty

1. All the aforesaid appeals have been filed against the judgments and orders of the High Court of Orissa at Cuttack which have been passed placing reliance on its earlier judgments in similar cases. The facts and legal issues involved herein are the same. Thus, they are heard together and are being disposed of by the common judgment and order. However, for convenience, Civil Appeal No. 1272 of 2011 is taken to be the leading case and some reference to facts would be taken from other appeals as and when necessary in the context of legal issues involved herein.

3. (A) The respondent was appointed as a Lecturer in Niali College, Niali, on 9.7.1979 and her appointment as such was approved by the Director of Higher Education, Orissa, a statutory authority - the appellant No. 2, vide order dated 18.12.1985, and she was granted the benefit of receiving 1/3rd grant-in-aid.

(B) In order to provide better facilities to teachers and enhance the standard of higher education, the Government of Orissa, came out with a Notification dated 6.10.1989 with a revised pay scale enforceable with effect from 1.1.1986 as per the recommendations of UGC. However, the said Notification was applicable only in such 2 cases where the post has been granted the benefit of grant-in-aid Scheme by 1.4.1989 and person manning that post had a good academic record i.e. 54 per cent or its equivalent grade in a Masters' Course.

(D) The present appellants contested the said writ petition pointing out that the respondent had secured only 40 per cent marks in her Master's course. She was by no means, eligible for appointment. Her appointment, being not in consonance with law, remained illegal.

5. On the other hand, it has been submitted by learned counsel for the appellants that factual and legal issues involved in these cases have never been considered either by the High Court or by this Court in proper perspective. For example, in Civil Appeal No. 1274 of 2011, State of Orissa v. Mrs. Manju Patnaik, the matter had initially been filed before the Orissa Education Tribunal. Therein, the question arose as to whether the respondent herein had been appointed by following the procedure prescribed by the law for making the appointment. As the State had raised the issue that respondent had been appointed without following any procedure known in law for this purpose her appointment itself was illegal and void. The vacancy on the post of Lecturer in Chemistry in Paramananda College, Bolgarh, Dist. Khurda was never advertised nor were the names of eligible candidates 4 requisitioned from the Employment Exchange. Admitted facts in the said case remain that the vacancy was advertised merely by affixing notices on the notice board of the College and of Bolgarh Block Office inviting applications from the eligible candidates. More so, the respondent had not even faced an interview before the Selection Board, as envisaged by the Statutory Rules in force at the relevant time, rather she had been interviewed merely by representatives of the Committee of Management of the College. The Tribunal accepted the case of the State to that effect, but granted her reliefs sought by her.

qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.

E. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available."

RELIEF NOT CLAIMED - CANNOT BE GRANTED:

ARBITRARINESS:

38. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where Statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated.

(emphasis added) 3

PER IN CURIAM - Doctrine:

(emphasis added)

This Court further dismissed the Review Petition Nos. 1529- 1532 of 2002 against the said judgment and order on 28.8.2002.

In some cases after 10-12 years of their initial appointment by the statutory authority i.e. Director of Higher Education.

(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the Rules 1974, the question of according relaxation by Utkal University could not arise and, therefore, the order of condonation etc. is nullity.

(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.

(ix) The exercise of condonation of deficiency had not been exercised by any University other than Utkal University.

Special leave petition in the case of Kalidas Mohapatra & Ors.

(xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.

(xxi) The submission on behalf of the respondents that Government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of this Court in Ram Ganesh Tripathi (supra).

47. In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant 4 of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.

48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.

50. In view of the above, all appeals stand disposed of. No order as to costs.