IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1284  OF 2011

State of Orissa & Ors.                                      …… Appellants  

Versus

Saroj Kumar Jena                               …… Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 5.8.2005 of the High Court of Orissa at Cuttack in O.J.C. No.  

11122/1999,  by  which the  High Court  has  issued directions  to  the  

State Govt. to grant particular pay scales with reference to particular  

dates in the grade of Upper Division Clerk and Head Clerk, to the  

respondent.  

2. Facts and circumstances giving rise to this appeal are that the  

respondent  stood appointed as  a  Lower Division Clerk (hereinafter  

called  as  LDC)  by  the  governing  body  of  Mahanga  Puspagiri

Mahavidyalaya, Irakana, Cuttack, on 18.8.1985. His appointment was  

duly approved by the Director of Higher Education (hereafter called  

appellant No.2), vide order dated 6.11.1990. The said respondent was  

promoted  to  the  post  of   Upper  Division  Clerk  (hereinafter  called  

UDC) w.e.f. 3.3.1990 and thereafter to the post of Head Clerk w.e.f.  

2.4.1992. In spite of the fact that his appointment and promotion had  

been  duly  approved  by  the  appellant  No.2,  being  the  statutory  

authority,  his  pay  was  not  fixed  in  the  pay  scales  meant  for  the  

respective promotional post.  

3. The respondent made a representation to fix his pay in the pay  

scales  of  the  posts  of  UDC  and  Head  Clerk.  However,  the  said  

representation was rejected vide order dated 20.3.1999, in view of the  

fact that he did not possess the requisite qualifications i.e. he had not  

passed the accounts examination, as required under the Orissa Non-

Government  Aided  College  Ministerial  Services  (Method  of  

Recruitment  and  Conditions  of  Service)  Rules,  1999  (hereinafter  

called Rules 1999).

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4. Being aggrieved, the respondent approached the High Court by  

filing the writ petition No.11122/1999, which has been allowed vide  

impugned judgment and order dated 5.8.2005. Hence, this appeal.  

5. Mrs.  Kirti  Renu  Mishra,  learned  counsel  appearing  for  the  

appellants,  has  submitted  that  the  respondent  did  not  fulfill  the  

requisite qualification as per the Rules 1999. For this reason,  the High  

Court was  not justified for granting the said relief. According to Mrs.  

Mishra,  no  new  post  could  have  been  created  without  the  prior  

approval of the appellant No.2. In the instant case, as no post had been  

sanctioned,  the appointment of  the respondent is  totally illegal  and  

thus, the impugned judgment and order is liable to be set aside.  

6. On the contrary, Shri V.S. Raju, learned counsel appearing for  

the  respondent,  has  opposed  the  appeal  contending  that  the  High  

Court has disposed of the writ petition following its earlier judgment  

in  Rajendra Prasad Singh v. State of Orissa, 93 (2002) CLT 346  

and in view of the statement made by the State counsel that the matter  

was squarely covered by the said judgment.  Thus, the appeal lacks  

merit and is liable to be dismissed.  

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7. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

8. Admittedly, the Rules 1999 could not be made applicable with  

retrospective effect and in case the respondent had been appointed and  

promoted  further  to  the  posts  of  UDC and  Head  Clerk  and  those  

promotions have been duly approved by the appellant No.2, no fault  

can be found with the impugned judgment and order. We also find no  

force  in  the  submission  made  by  Mrs.  Mishra  that  the  respondent  

could not be appointed as no sanctioned post was available and prior  

approval had not been taken from the appellant No.2 for making the  

appointment of  the  respondent.  Thus,  he stood appointed  to  a  non  

existing post. The Circular issued by the Education & Youth Services  

Department,  Government  of  Orissa,  dated  27.5.1978  contained  a  

clause as under:  

“xx xx xx

Prior  concurrence  of  Govt.  should  be  obtained  for   increase  in  seats  and  opening  of  new  subjects  and   creation of new posts.”    (Emphasis added)

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The Letter dated 6.11.1990 granting approval by the appellant  

No.2 reads as under:  

“In  pursuance  of  G.O.  No.46209/H,  and  No.46210/H dated 18.1.85 approval is hereby accorded  provisionally  to  appoint  and  adjustment  of  Sri  Saroj   Kumar  Jena,  L.D.C.,  Mahanga  Puspagiri   Mahavidyalaya, Erakana, Dist. Cuttack with effect from  1.3.90  against the vacancy, caused due to resignation  tendered by Sri Khageswar Pradhan on 28.2.90.

Sri Jena shall be entitled to draw 1/3rd grant with  effect from 1.3.90 to 31.5.90 and 2/3rd grant with effect   from  1.6.90  in  the  scale  of  Rs.780-1160/-.  The  post   L.D.C.  has  been  admitted  to  1/3rd grant  in  aid  from  1.6.88.”    (Emphasis added)

It is evident  from  the  aforesaid  letter  of  approval  dated  

6.11.1990  that  the  respondent  had  not  been  appointed  on  a  non  

existing/non-sanctioned  post.  The  post  became  vacant  due  to  the  

resignation  tendered  by  Sri  Khageswar  Pradhan  on  28.2.1990.  

Therefore, the post was available and the provisions of the Circular  

dated 27.5.1978 could not be made  applicable to the case at hand.  

9. In view of the above we do not find force in the appeal.  The  

appeal is accordingly dismissed. No costs.  

However, in the facts and circumstances of the case, in case the  

pay scale of the respondent had not been fixed as directed by the High  

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Court, all the formalities shall be completed in compliance with the  

High Court’s judgment within a period of three months from today.  

Arrears, if any, should be paid to him within a period of three months  

thereafter.  

………………………..J. (P. SATHASIVAM)

 ………………………..J. (Dr. B.S. CHAUHAN)

New Delhi, February 9,   2011

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