Simanchal
Panda Vs. State of Orissa & Ors [2002] Insc 38 (25 January 2002)
S. Rajendra
Babu & Doraiswamy Raju. Raju, J.
The
appellant herein, who lost before the High Court fighting his cause as
fourth-respondent in a Writ Petition filed in the High Court by the fourth-
respondent in this appeal, has challenged the judgment of the Division Bench of
the Orissa High Court dated 4.9.98 in OJC No.3652 of 1996 wherein the Order
dated 23.3.96 passed by the Second Respondent herein according approval insofar
as it related to the appellant in the category of non-teaching staff as Junior
Clerk-cum-Typist in Anchalika Mahavidyalaya Jagannath Prasad, Distt. Ganjam,
came to be set aside.
The
relevant and necessary facts for appreciating the respective claims of the parties
before us are that the appellant herein was appointed as Upper Division Clerk
in the college with effect from 8.9.90 and joined service on 8.9.90.
Since
the college, as part of its own staff pattern, had a junior clerk (the fourth-
respondent herein and the writ petitioner in the High Court) and another person
as Lower Division Clerk-cum-Typist for purposes of effectively manning and
smooth running of the office, the appellant was stated to have been designated
as Upper Division Clerk being senior among the others though it is said, for
all purposes he was taken to be the Lower Division Clerk-cum-Typist discharging
duties as such from the beginning. Before joining when the appellant pointed
out about this designation as Upper Division Clerk, the college seems to have
instructed the appellant to accept appointment giving at the same time an
undertaking that he had no objection if the approval of the competent
authorities for purposes of Grant-Aid was obtained as Lower Division Clerk or
Lower Division Clerk-cum-Typist depending upon the sanction based on the staff
pattern permissible and that may be accorded by the authorities for purposes of
assessment of aid to the college. It is seen from the combined statement
submitted by the college authorities to the Education Department, that the case
of the appellant was submitted for approval as Junior Clerk-cum-Typist since
that is the category of post to which the sanction could be accorded for the
college as per the eligibility criteria laid down for the purpose. When the
Second Respondent passed the Order dated 23.3.96 according approval, as noticed
above, the fourth-respondent herein filed the Writ Petition challenging the
same by contending that the present appellant in this Court was only appointed
as Upper Division Clerk or Head Clerk and it was the writ petitioner in the
High Court, the present fourth-respondent, who was appointed as Junior
Clerk-cum- Typist and, therefore, the approval ought to have been of the
appointment of the writ petitioner and not of the appellant. This stand of the
fourth-respondent herein had the acceptance of the Division Bench of the High
Court for the reason that if depending upon the students strength, the approval
can only be of one Junior Clerk-cum-Typist, the writ petitioner who was
appointed as such alone could have been approved and approval by the
authorities of the present appellant is unwarranted and impermissible in law.
While quashing the appointment of the present appellant, directions have been
issued to the competent authorities to approve the appointment of
fourth-respondent herein within the stipulated time. Aggrieved, as noticed
earlier, the present appeal has been filed.
Heard Shri
P.N. Misra, Senior Advocate, for the appellant and Shri Ashok Panda, Senior
Advocate, for the fourth-respondent and Mrs. Kirti Misra, Advocate, for the
State and its Authorities.
We
have been taken through the relevant papers to substantiate the respective
stand of the opposing parties. On a careful consideration of the same we are of
the view that the High Court committed a serious error in interfering with the
order of approval accorded to the appointment of the appellant as Junior
Clerk-cum-Typist for purposes of assessing the quantum of aid. There can be no
serious dispute or controversy that the appellant herein was senior to the
fourth- respondent, he having been working in the college since 8.9.90 as
Junior Clerk- cum-Typist though internally for administrative purposes of the
college he was designated as Head Clerk-cum-Upper Division Clerk to enable the
smooth running of the office administration, in the light of the two other
clerks employed in the services of the college immediately though subsequently
after the appointment of the appellant. It is seen from the qualifications possessed
by the respective candidates also that the appellant is fully and better
qualified for the post and he has been used as such Junior Clerk-cum-Typist in
the college.
When,
irrespective of the nomenclature given internally to the post held by the three
persons in the services of the college, in terms of the guidelines laid down
for purposes of assessment of aid-grant from the Government only one post of
Junior Clerk-cum-Typist is permissible and the college authorities taking into
account not only the seniority of the appellant but also the fact that the
appellant alone has been discharging duties for all effective purposes as
Junior Clerk-cum- Typist have chosen to recommend for approval and assessment
of grant in order to satisfy the norms pertaining to the grant and the
entitlement of the college and the competent authorities in the Education
Department has also chosen to accept and accord approval therefor, the High
Court ought not to have interfered with the sanction accorded by the second
respondent under the impugned order.
The
reason assigned by the High Court to justify interference appears not only to
be superficial but also not in conformity with any settled or accepted
principle of law or on facts. It perpetuates on the other hand 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
unable to persuade ourselves agree with the reason of the High Court.
The
appeal is hereby allowed, the order of the High Court is set aside and
consequently the writ petition filed in the High Court by the fourth-respondent
shall stand dismissed. No costs.
J.
(S. Rajendra
Babu) J.
(Doraiswamy
Raju) January 25, 2002.
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