JUDGMENT
A.K. Samantaray, J.
1. In this writ petition under Articles 226 and 227 of the Constitution of India the petitioner has challenged the arbitrary and illegal rejection of his claim for approval and consequent release of Grant-in-aid against the post of Demonstrator in Chemistry of Rajsunakhala College in the District of Nayagarh by the Government in an erroneous application of the Grant-in-aid Order, 2004 whereas the said Grant-in-aid is not applicable to the petitioner’s case as the petitioner’s case is covered by the Grant-in-aid Order, 1994 and Clauses 3 and 4 of Grant-in-aid Order, 2004 have saved the petitioner’s case.
2. The fact of the petitioner’s case is that in the year 1978-79 the opposite party No. 3 college, i.e., Rajsunakhala College, Rajsunakhala was established with requisite concurrence and affiliation. In the year 1983-84 Science stream was opened in the said college with 128 seats and one Sri Rabindra Nath Muduli joined as Store Keeper-cum-Lab. Assistant in Chemistry Department of the college. In the year 1985, specifically on 1.11.1985, the college was declared and notified as an aided educational institution and was admitted to the Grant-in-aid fold as per Grant-in-aid Order, 1979. In the year 1988 said Sri Rabindra Nath Muduli, Store Keeper-cum-Lab. Assistant resigned before steps could be taken for approval and release of Grant-in-aid in his favour. On 21.11.1988 the petitioner was appointed as Store Keeper-cum-Lab. Assistant in Chemistry Department in the vacancy caused by the resignation of Sri Rabindra Nath Muduli with continuity of the post from the year 1983-84 vide Annexure-1. In the year 1992, specifically on 21.6.1992, the college re-designated the said post of Store Keeper-cum-Lab. Assistant where the petitioner was continuing as Demonstrator in pursuance of G.O.R. No. 31587 dated 11.7.1991 of the Govt. in Higher Education Department. Since after establishment of the College during the year 1978-79 and opening of +2 Science stream during the year 1983-84 and requisite concurrence and affiliation were granted in the same year, the post of Demonstrator in Chemistry Department was very much justified as per the prevalent yardstick. The College was notified as an aided educational institution as per Section 3(b) of Orissa Education Act and became eligible to receive Grant-in-aid from the year 1984-85, in view of the admissibility of the petitioner’s post in the college as per the prevalent yardstick the said post was eligible to receive Grant-in-aid, i.e. 1/3rd with effect from 1.6.1990, 2/3rd from 1.6.1992 and full salary cost with effect from 1.6.1994. The Management of the college sent proposal for approval of petitioner’s appointment and release the Grant-in-aid in the aforesaid manner to the Director of Higher Education (O.P. No. 2) during the year 1997, which was not considered for a pretty long time. Under such circumstances, the petitioner filed OJC No. 14052 of 2001 before this Court and this Court vide order dated 23.9.2002 disposed of the said writ petition directing the College to send the proposal to the Director of Higher Education and the Director was required to furnish the said proposal to the State Government with his recommendations within a period of three months where upon the State Government was directed to consider and take a final decision with regard to approval and release of Grant-in-aid within a further period of three months.
3. As per the said order of this Court the petitioner complied with the portion of the direction meant for him and reasonably expected suitable action by the opposite parties in the matter and to get a favourable order of approval and release of Grant-in-aid within the period stipulated in the said order. Since thereafter nothing happened and the matter was abnormally delayed at the level of the opposite parties the petitioner was constrained to file CONTC. No. 490 of 2004 on 13.9.2004 which is still pending. It is stated in the writ petition that after receipt of the proposal from the college the Director verified the records and after a detailed verification he prepared a memorandum clearly indicating therein that the college was eligible to receive Grant-in-aid during the year 1984-85 and the petitioner’s post was very much admissible to the College during 1984-85 and the Director further recommended the case of the petitioner for approval to the Government vide his memo dated 3.1.2004 (Annexure-3). Notwithstanding such recommendation and during the pendency of the contempt petition, the State Government hastened to’ dispose of the matter and by its Order dated 6.10.2004 rejected the petitioner’s claim for approval of his appointment and sanction of Grant-in-aid in his favour on the ground that as per the policy decision of the Grant-in-aid Order, 2004, no post of Class-III and Class-IV in the College was admissible into the Grant-in-aid fold due to serious financial constraint faced by the State Government and that after promulgation of Grant-in-aid Order, 2004, with effect from 5.2.2004, the Grant-in-aid Order, 1994 has been repealed. The said order of the Government dated 6.1.2004 is annexed as Annexure-4 which is impugned in this writ petition and the petitioner has prayed to quash the order in Annexure-4.
4. Pursuant to the notices issued all the opposite parties have filed their counter affidavits. Opposite parties 1 & 2 have filed their joint counter affidavit on 28.6.2005 and the opposite party No. 3- College filed counter affidavit on 1.5.2005. In the counter affidavits it is not disputed that the petitioner was appointed as Store Keeper-cum-Lab. Assistant in the Chemistry Department of the College on 21.11.1998 and that the said post was re-designated as Demonstrator and the College has been admitted to Grant-in-aid fold from 1984-85 session under the prevalent Grant-in-aid Order, 1979. Further the fact that the post of Demonstrator is admissible to the College and that the Director has recommended the petitioner’s case for approval and release of Grant-in-aid are all admitted. But the State Government (O.P. No. 1) in its counter sought to justify its action in Annexure-4 on the ground that the policy decision of the Government not to admit any new post in the cadre of Class-III & Class-IV into Grant-in-aid fold due to serious financial constraint and that the Grant-in-aid Order, 1994 having been repealed by the Grant-in-aid Order, 2004, there is no scope left for consideration of petitioner’s case.
5. Learned Counsel appearing for the petitioner attaching vulnerability to the Government order (Annexure-4) impugned in this writ petition submitted that Clause-3 of the Grant-in-aid Order, 2004 (Annexure-5) clearly stipulates that the educational institutions which have become eligible to be notified as aided educational institutions by 1.6.1994 shall be notified as such and will be entitled to receive Grant-in-aid by way of Block grant. He further submitted that the proviso to the said Clause puts a bar for such notification, if the College has more than two ministerial staff and more than two peons. Clause 3.1 of Grant-in-aid Order, 2004, is saved by operation of Clause-4 of the said Grant-in-aid Order and thus the position becomes very much clear that if the College is in receipt of Grant-in-aid on or before 1.6.1994 and is receiving Grant-in-aid, shall continue to receive Grant-in-aid irrespective of the operation of Grant-in-aid Order, 2004, he submitted. Learned Counsel for the petitioner referring to a Division Bench decision of this Court in O.J.C. No. 8516 of 1992(Smt. Gitanjali Mishra v. State of Orissa and Ors.) decided on 30.4.1993 submitted that this Court has categorically held in the said judgment that Lab. Assistants/Demonstrators are teaching staff. We have carefully gone through the said judgment and found that the State Government after careful consideration on the representation of the Association of All Orissa Government and Non-Government College Demonstrators have decided to delete the word ‘N.T’. from their designation Demonstrators (N.T.). The State Government has acceded and deleted the word from their designation, as Demonstrators were involved in the teaching. In the body of the said judgment referred to by learned Counsel for the petitioner, the UGC report for the year 1986-87 has been referred to wherein the Tutors and Demonstrators have been included in the table of teaching staff. Similarly, the letter of the Government of India, Ministry of Human Resource Development (Department of Education) bearing No. F.I.-21/87 dated 22nd July, 1988 on the subject of revision of pay scales of teachers in Universities and Colleges has been referred to and Tutors and Demonstrators have been classified as teachers in the Universities and Colleges. Citing several such instances and notifications the Division Bench of this Court categorically found that the Lab. Assistants/ Demonstrators are included in the category of teaching staff.
6. Learned Counsel for the petitioner referring to the counter affidavit of Commissioner-cum-Secretary to Government, Higher Education Department (O.P. No. 1) quoted the decision of the Empowered Committee meeting held on 31.8.2002 relating to the restrictions imposed by the State Government regarding filling up of base level posts, abolition of 50% of base level posts, admitting a particular post into Grant-in-aid fold where there is necessity and argued that these are all flimsy grounds to deprive the petitioner of his legitimate claim, on the face of Director’s memorandum recommending petitioner’s case in pursuance of this Court’s order. Learned Counsel went to the extent of submitting that even if after the Director sent its memorandum to the Government recommending the case of the petitioner, opposite party No. 1 sat over it which constrained the petitioner to initiate contempt proceeding and only after the contempt notice was received this O.P. No. 1 suddenly became vigilant and without considering the memorandum of the Director in its proper perspective rejected the suggestion on some very flimsy grounds and extraneous considerations. He attacked vehemently the counter affidavit of O.P. No. 1 wherein there has been mentioned about Class-III & Class-IV which are only meant for ministerial staff and peons and this Court has already held that Demonstrators are not non-teaching staff, rather, the Government has admitted them to teaching staff after deletion of N.T. attached to their designation. The contention of the Government is absolutely without merit and has no application to the case of the petitioner who has been working as a Demonstrator in the concerned College sine long. Learned Addl. Standing Counsel addressing his arguments for O.Ps. 1 & 2 submitted with reference to the counter affidavit of O.P. No. 1 that since at the time of consideration of the memorandum submitted by the Director of Higher Education to the Commissioner-cum-Secretary no document was produced by the concerned College or the petitioner, the claim of the petitioner has been rightly rejected. We are unable to accept such contentions in view of the fact that by order of this Court, on the representation of the petitioner, the Director (O.P. No. 2) had made verification of concerned documents as to the date of appointment, continuance of the petitioner, the date he was re-designated as Demonstrator from Lab. Assistant and with all details after verification he submitted the memorandum (Annexure-3). Besides, the Addl. Standing Counsel could not show us a single scrap of paper by which O.P. No. 1 had directed either to the College Management or the petitioner to produce any document before him for his satisfaction before passing the impugned order in Annexure-4. Such a contention appears to us to be an after thought one and according to us there was absolutely no necessity on the part of O.P. No. 1 to verify any document after his receipt of the report of the Director.
7. It is contended by learned Addl. Standing Counsel that mere admissibility of a post and eligibility of an incumbent does not ipso facto entitle him to get the benefit of Grant-in-aid. The payment of Grant-in-aid always depends on the economic capacity of the State and Section 7-C of Orissa Education Act, 1969 stipulates that no Grant-in-aid can be claimed beyond the economic capacity of the State and it is always limited to the funds provided in the budget. He submitted further that the financial health of the State Government is precarious and it is not in a position to afford the cost of subsidizing the staff cost of any more educational institutions. Such a contention of the learned Addl. Standing Counsel, we are not prepared to accept, in view of the fact that the Government may put a ban on extending Grant-in-aid to any other college or colleges due to financial stringency which the State Government is going through, but extending the benefit of the Grant-in-aid to a legitimate incumbent as the petitioner cannot shake the financial backbone of the State when all other teaching staff and ministerial staff and peons are in the fold of Grant-in-aid. There would be serious discrimination if this petitioner is debarred or deprived of the same by the whimsical order passed by O.P. No. 1 basing on flimsy grounds. In no case, this petitioner can be said to be a non-teaching ministerial staff and as per the provisions of law already stated this college is in the fold of Grant-in-aid from the year 1984-85 and there is nothing to show that the post of the petitioner is not admissible in the college and is beyond the yardstick. The memorandum of the Director, Higher Education, rather, goes to show that the post of Lab. Assistant became admissible to the college during the academic session of 1983-84 and the petitioner being re-designated as Demonstrator in Chemistry Department with effect from 21.11.1988 which the Director has himself mentioned in his memorandum to O.P. No. 1 and has categorically mentioned that the petitioner is eligible to receive Grant-in-aid 1/3rd with effect from 1.6.1990, 2/3rd from 1.6.1992 and full salary cost with effect 1.6.1994.
8. The ground taken by O.P. No. 1 for rejection of the claim of the petitioner is that “in the meantime the State Government have taken a policy decision not to admit any post in the cadre of Class-III and Class-IV into Grant-in-aid fold due to serious financial constraint faced by the State Government. In the meantime, Grant-in-aid Order, 2004 has come into force with effect from 5.2.2004 and the Grant-in-aid Order, 1994 has been repealed.”
9. For the reasons already discussed in the body of the judgment, the ground of rejection as quoted above is absolutely without any merit, and as it appears, it has been passed in hot haste to somehow reject the claim of the petitioner as at his behest contempt notice was issued and thereby to show compliance of the order of this Court.
10. In view of the above discussion, considering the averments of the parties and hearing learned Counsel, we quash the order dated 6.10.2004 (Annexure-4) passed by the Commissioner-cum-Secretary to Government, Higher Education Department (O.P. No. 1) and direct him to approve the petitioner’s appointment as Demonstrator and release the Grant-in-aid in his favour. The entire exercise be completed within a period of three months from the date of receipt of this order.
The writ petition is allowed accordingly.
B.P. Das, J.
I agree.