A.S. Naidu. J.
1. The petitioner, a ministerial employee of an Aided Educational Institution, assails the order dated December 22, 1998, passed by the Government of Orissa, Department of Higher Education (Annexure-7) refusing to accord approval to the petitioner's promotion to the post of Upper Division Clerk and Head Clerk with effect from June 1, 1980 and June 1, 1986 respectively, only on the ground that he has not passed Accounts Examination.
2. Shorn of all unnecessary details, the facts of the case are as follows :
Subhadra Mahatab Mahavidyalaya, situated at Asureswar in the District of Cuttack, is an aided educational institution as defined under the Orissa Education Act and the Rules framed thereunder. The said institution came into the grant-in-aid fold with effect from June 1, 1986. After facing rigorous recruitment test, the petitioner was appointed as a Lower Division Clerk in the aforesaid institution on December 4, 1979. The Governing Body of the College promoted the petitioner to the post of Upper Division Clerk with effect from June 1, 1980 and, thereafter, the petition was promoted to the post of Head Clerk with effect from June 1, 1986. The recommendation sent by the Governing Body of the college to accord approval of the petitioner's promotion to the post of Upper Division Clerk and Head Clerk remained pending with the authorities for a considerable time. Being aggrieved by the inaction of the authorities, the petitioner approached this Court in OJC No. 7848 of 1996. The specific case of the petitioner was that the authorities have accorded approval to the promotion of persons similarly placed as the petitioner and working in other educational institutions whereas the case of the petitioner was discriminated, thus, there was gross violation of the principles enshrined under Articles 14 and 16 of the Constitution of India. This Court disposed of the writ application on May 7, 1998 with a direction to the Director, Higher Education to consider the proposal submitted by the Governing Body and to take a decision within three months from the date of communication of that order. The State Government by its order dated December 22, 1998 declined to accord approval to the petitioner's promotion vide Annexure-7, and the said order, as stated earlier, is impugned in this writ application.
3. After receiving the Rule from this Court, counter affidavits were filed on behalf of the opp. parties 1 and 2, inter alia, admitting the facts that the petitioner was appointed as a Junior Clerk in the aforesaid college with effect from December 4, 1979 and that his services have been duly approved in the said post vide the order passed by the Directorate bearing No. 27365 dated June 3, 1986. It is stated that the petitioner has received 1/3rd grant-in-aid with effect from June 1, 1985. It is further averred that the post of Upper Division Clerk and Head Clerk are admissible to the college, on the basis of roll strength and that the Governing Body of O.P. No. 3 - College had promoted the petitioner to the said post, but then the promotion having not been made in conformity with the Rules as required under the Orissa Ministerial Services (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District Offices and Offices of the Head of Departments) Rules, 1963 (hereinafter referred to as "O.M.S. Rules, 1963) which mandatory require passing of Accounts Examination, no approval can be accorded to the promotions of the petitioner, which according to the opp. parties, is de-horse the Rules. A further stand is also taken by the Authorities that the stipulations made in paragraph-19 of the Grant-in-aid order, 1994, having not been complied and as the petitioner does not satisfy the said criteria, approval to the promotion to the post of U.D.C. and Head Clerk cannot be acceeded to. In reply to the averment that approval of the promotion of some of the persons similarly placed as the petitioner has been accorded, it is stated in the counter affidavit, that at the relevant time. Accounts training was not being insisted upon in respect of Non-Government Colleges and the Government decided to enforce the said rules in respect of Non-Government Colleges vide G.O. No. 53264/HE dated March 30, 1997. Approval to the promotion in case of Sri S. C. Swain and Sri J.M. Rout having been accorded in consonance with the judgment of the High Court prior to September 30, 1997, their cases stand in a different footing than the petitioner.
4. In the counter affidavit, it has been specifically stated that the Government of Orissa, Department of Higher Education by its letters dt. March 4, 1999, June 14, 1999 and August 31, 1999 envisages that proposal for promotion of ministerial staff of different colleges for the purpose of grant-in-aid cannot be considered in future unless they satisfy the requirement stipulated in the O.M.S. Rules, 1963 and the guidelines stipulated in letter dated August 31, 1999 issued by the Government of Orissa, Department of Higher Education relating to promotion of ministerial cadre of employees of Non-Government aided colleges. Last but not the least, it has been emphatically stated that any incumbent holding the post of either Junior Clerk/ LDC or Senior Clerk/UDC in the event of his/her passing preliminary/ final accounts examination will be only eligible to hold the promotional post from the date of publication of the result of the said Examination. All the circulars referred in the counter have been annexed as Annexures A/2, B/2, C/2 and D/2 respectively.
5. A rejoinder affidavit has been filed by the petitioner, inter alia, repudiating the averments made in the counter affidavit filed by the State. It is emphatically asserted that till 1997, there was no provision requiring a ministerial staff of an aided educational institution to undergo Accounts training and only after 1999 such stipulations/requirements were extended to Non-Govt. Aided Institutions. The petitioner has also cited a catena of names of different employees working in different Aided Educational Institutions whose appointments have been approved by the authorities in promotional post though they did not pass Accounts Training. Further, it is submitted that Notifications published and guidelines issued being prospective in nature, the same shall not affect the rights of the petitioner who was promoted to the Higher post much before issuance of said Notifications.
6. A cumulative reading of the pleading reveal that the following facts are not disputed by the parties :
(A) Subhadra Mahatab Mahavidyalaya - O.P. No. 3's institution was established in the year 1979 and got recognition in the year 1981 and affiliation from the Session 1981-1982. It received Grant-in-aid with effect from June 1, 1986,
(B) The petitioner was recruited as a Lower Division Clerk in the aforesaid institution on December 4, 1979.
(C) As per the yardstick published by the Government of Orissa, Education and Youth Services Department dated July 8, 1977 for Non-teaching staff of Non-Govt. colleges, O.P. No. 3's college was eligible to appoint an Upper Division Clerk in the year 1980 and Head Clerk in the year 1986.
(D) The Governing Body after taking into consideration the seniority and eligibility of the petitioner promoted him to the post of U.D.C. with effect from June 1, 1980 and thereafter to the post of Head Clerk in June 1, 1986.
7. The moot question which needs to be determined in the present case is as to whether the petitioner who admittedly has not passed either preliminary or final Accounts Training Examination, is eligible to be promoted to the post of U.D.C. and Head Clerk in the year 1980 and 1986 respectively.
Accordingly to the State Government, for being promoted to the post of U.D.C., an incumbent has to pass preliminary Accounts Examination and only after passing the Final Accounts Examination, he may be eligible to be promoted to the post of Head Clerk. The Government has refused to accord approval to the promotion of the petitioner to the post of U.D.C. and Head Clerk only on the ground that the petitioner has not passed Accounts Examination as contemplated under the O.M.S. Rules, 1963.
8. At this juncture, it would be pertinent to examine as to whether the O.M.S. Rules, 1963 are applicable to the aided educational institutions or not ? The O.M.S. Rules, as the name itself indicates, is framed for regulating the method of recruitment and conditions of service of Clerks and Assistants of the District Offices and Offices of the Heads of Department, Rule 2(a) of the O.M.S. Rules defines District Office as follows :
"2(a) 'District Offices' means the offices of District Collector and includes the Office of Settlement Officer, Deputy Director of Consolidation of Holdings and Deputy Director of Survey and Map Publication, Orissa."
Section 2(b) of the said Rules defines offices of the Heads of the Departments as follows :
"2(b) 'Offices of the Heads of Departments' means the office of the Board of Revenue and Offices of the Revenue Divisional Commissioners;
Explanation : The office of the Board of Revenue, for the purpose of this rule, includes the office of the Inspector-General of Registration-cum-Excise Commissioner, Commissioner of Land Reforms, Commissioner for Consolidation of Holdings, Directors of Land Records and Survey and Director of Consolidation. ..."
9. Interpreting the O.M.S. Rules, 1963, a Full Bench of this Court in the case of Raghunath Ransingh v. State of Orissa and Ors., XL) (1975) CLT 1079 held that :
" *** The definition is exhaustive because it gives the meaning of the term and so far as it is inclusive, it clearly states what is included therein. Thereafter, apart from the offices of the Board of Revenue, the Inspector General of Registration-cum-Excise Commissioner, the Revenue Divisional Commissioner and the Director of Land Records and Survey, no other Government establishment would come within the purview of the definition."
10. Once the O.M.S. Rules, 1963 are held not to be applicable to the Aided Educational Institutions, the provisions embodied in O.M.S. Rules are also not applicable to the said institution and as such, the reasons assigned by the authorities are not justifiable.
But then, in the year 1985, a new set of rules, in the name of style of "The Orissa Ministerial Service (Method of Recruitment to the post of Junior Clerks in the District Offices) Rules, 1985" were promulgated. Rule 2(c) of the said rules defines District Offices, which reads as follows :
" 'District Office' means an office subordinate to and under the administrative control of a Head of Department mentioned in Appendix-3 of the Orissa Service Code and includes the Office of a Head of Department as aforesaid to which the Orissa Ministerial Service (Method of Recruitment to posts of Junior Assistants in the Office of Heads of Department) Rule, 1975 do not apply and the ministerial service cadre of which consists of Junior Cferks and Senior Clerks."
Appendix-3 of the Orissa Service Code includes the Director of Higher Education as a Head of the Department. The Government Colleges being subordinate to the Director of Higher Education, according to me, will come within the ambit of the O.M.S. Rules, 1985. Said Rule, however, came into force only with effect from March 6, 1986. Pertinently, the said rule is also silent with regard to the procedure of recruitment to be adopted for filling up the post of Junior Clerk as well as with regard to the promotion to the post of U.D.C. in the Non-Govt. Educational institution. This rule was also not made applicable to the employees of Aided Educational Institutions.
11. The Orissa Education (Recruitment and Conditions of Service of Teachers and Members of Staff of Aided Educational Institution) Rules, 1974 came into force with effect from February 12, 1974. Rule 7 of the said Rules, deals with conditions of eligibility of candidates. Section 7(c) of the said Rule stipulates as follows :
"Age or qualification for appointment as a teacher and other posts would be the same as per similar or corresponding post of educational institutions shall be and maintained by the Government."
Referring to the said Rule, a contention is advanced by the opp.parties that, as passing of preliminary and final Accounts Examination is mandatory for promotion to the post for U.D.C. and Head Clerk in Government Colleges, the same stipulations shall also be paramateria applicable to the Employees of Aided Educational Institutions, in consonance with Rule 7(c) quoted supra. However the opp. party-3-College, became an Aided Educational Institution only after 1986. Thus, for all acts and purposes, the 1974 Rules shall be made applicable to the said Institution only after 1986. Admittedly, the petitioner was promoted to the post of U.D.C. in June, 1980 and to the post of Head Clerk in June, 1986. Thus, the provisions of Rule 7(c) of 1974 Rules which became applicable to opp. party No. 3-College only after 1986, cannot stand on the way of the petitioner.
12. In the counter affidavit, opp. parties have relied upon a circular bearing No. 53264/HE dated September 30, 1997 addressed to the Director, Higher Education, Orissa, Bhubaneswar. The said letter deals with the conditions of promotion of Junior Clerk and Senior Clerks of Non-Govt. Aided and Unaided Colleges of the State. The letter reads as follows :
"I am directed to say that Rule-9 of the Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District Offices and Offices of the Heads of Department) Rules, 1963 is applicable to the Ministerial Staff of Government Colleges for the purpose of their promotion to higher post, Govt. have not framed any rules laying down the conditions for promotion of Junior Clerks and Senior Clerks engaged in different Non-Government Aided and Unaided Colleges of the State although they are getting the same scale of pay as that of their counter parts in Government Colleges.
Government, therefore, after careful consideration have decided that the conditions laid down in the Rule 9 of the said OMS Rules, 1963 as amended from time to time is applicable to the Junior Clerks and Senior Clerks of the Non-Govt. (Aided and Unaided) colleges of the State in the matter relating to their promotion to higher posts."
Perusal of the said circular unambiguously reveals that the provisions of Rule 9 of O.M.S. Rules, 1963, as amended from time to time, was made applicable to Non-Govt. Aided Educational Institutions of the State, in the matter relating to promotion of ministerial staff, only in the year 1997. In other words, till 1997, said Rule has absolutely no application to opp.party No. 3-ColIege. The letter of State Government is annexed to the counter as Annexure-A/2.
13. The order issued by the Government of Orissa, Department of Higher Education on March 4, 1999 dealing with conditions of the promotion in the ministerial cadre of Non-Govt. Colleges of the State, a copy of which is filed as Annexure-B/2 to the counter affidavit, also throws some light on the matter. Relevant portion of the order reads as follows :
"Rule-7(c) of the O.E, Rules, 1974 provides that the age of qualification for appointment of teachers and other posts would be the same and similar to the corresponding posts in the educational institutions established and managed by the Government. Therefore, the criteria followed for promoting Ministerial Staff appointed in Govt. Colleges is required to be followed in case of Non-Government Aided Colleges as well. A circular in Government letter dt. 30.9.97 referred to above was issued earlier, clarifying that the provisions of Rule-9 of the O.M.S. Rules, 1963 as amended from time to time is applicable to Junior Clerks and Senior Clerks in the Non-Government Colleges of the State in the matter relating to promotion to higher posts.
In the mean time, it has come to the notice of the Government that the Governing Bodies while promoting the Ministerial Staff of their respective Colleges to higher posts have not observed the procedure required to be followed. In the most of cases the requirement of passing the "Accounts Examination" has not been taken into consideration and the persons required to be promoted have not actually passed the examination. In many cases, the requirement of completing a particular period of service in a particular grade before being considered for promotion has also not been adhered to. Under the above circumstances, Government after careful consideration, have decided that when there is a clear cut provisions in the rule that the qualifications for promotion of the Ministerial Staff in Non-Government Colleges are same as that of Government Colleges, there is ho scope for Government to approve the promotion of the Ministerial Staff of Non-Government Colleges against higher posts without conforming to requirement of O.M.S. Rules, 1963."
By the said letter the Deputy Secretary to Government requested the Director, Higher Education to intimate the respective Governing Bodies of the Colleges that the question of sanctioning grant-in-aid shall not be considered in future unless they satisfy the requirement of the O.M.S. Rules, 1963. While matter stood thus, the Government, Department of Higher Education issued circular dated June 14, 1999 (Annexure-C/2) which also reveals that the Government was aware that a number of employees under the Ministerial cadre of Non-Govt. Aided Colleges of the State are receiving grant-in-aid and enjoying other benefits against promotional post without conforming to the requirement of O.M.S. Rules, 1963. In the said letter, the Director was requested to ascertain the position and to formulate procedure to streamline the matter and to furnish the same to the Government for consideration.
14. A cumulative reading of the circulars issued by the Government time and again, some of which are annexed to the counter affidavit filed by the Government and referred to supra, leads to an irresistible conclusion that till 1997, provisions of the O.M.S. Rules were not made applicable to any of the Aided Educational Institutions of the State. Thus, the argument advanced by the State Counsel that no approval to the post of Senior Clerk or Head Clerk can be accorded without passing preliminary or final Accounts Examination, can be implemented only after 1997. The said criteria, under no stretch of imagination, can be given a retrospective application so far as aided and unaided Non-Government Colleges/Institutions are concerned, specially in view of the admissions made by the Government in Letter No. 53264/HE dt. 30.9.97 (Annexure-A/2) that Government till then had not framed and rules laying down the conditions for promotion of Junior Clerks and Senior Clerks engaged in different Non-Government Aided and Unaided Colleges.
15. The conclusion arrived at by me also finds support from the fact that the State Government vide Notification bearing No. 37807 dated August 17, 1999 framed a set of Rules in exercise of powers conferred under Article 309 of the Constitution in the name and style of the Orissa Government College Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1999 and by another Notification dated November 11, 1999, the Government in exercise of power conferred under Section 27(2) of the Orissa Education Act framed a set of paramateria rules for the Non-Government Aided Colleges ministerial employees in the name and style of "The Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and conditions of Service) Rules, 1999 which came into force with effect from December 17, 1999, prescribing the stipulations for passing Accounts Examination as a condition precedent for promotion to the post of U.D.C. and Head Clerk post. This action of the Government makes it clear that the Government was conscious that till 1999, there was no provision prescribing a stipulation to pass Accounts Examination as a condition precedent for promotion to the higher post in Ministerial Cadre for Non-Government Aided and Unaided Institutions. Admittedly, in the present case, the petitioner was promoted to the post of U.D.C. in the year 1980 and to the post of Head Clerk in the year 1986. Both the posts were permissible under the prescribed yardstick. In view of the fact that neither in 1980 nor in 1986, there was any Rule or Notification laying down a stipulation to pass Accounts Examination as a condition precedent, I have no hesitation to hold that the promotion of the petitioner was not bad nor contrary to Rule.
16. Examining the problem from another angle, it appears that the training and Accounts Examination, was all-along conducted by the State Government through the Board of Revenue and the candidates for taking said training and appearing the Examination were to be sponsored by the State Government from Government establishments. The petitioner not being an employee of the State Government could not have taken training and appeared the Accounts Examination. This is also a factor which clearly reveals that till 1999, the embargo of passing the Accounts Examination was not insisted upon so far as Ministerial employees of private or Non-Govt. Educational Institutions are concerned, as there was no mode provided for imparting training or conducting Account Examination, so far as Non-Government Institutions are concerned.
17. After hearing Mr. Rath, learned counsel for the petitioner and learned counsel for the State and after perusing the counter affidavits and the documents filed by the State Government, I have no hesitation to hold that in the year 1980 and 1986 respectively, there was no provision stipulating the condition of passing Accounts Examination as pre-requisite for promotion to the post of U.D.C. and H.C. and that the said stipulation was introduced only in the 1974 Rules as and when the said Rules were made applicable to Non-Government Educational Institutions and/or with effect from 1997 as would be evident from Annexure-A/2, whichever is earlier.
18. Once it is held that passing of Accounts Examination was not required in the year 1980 and 1986, the reasons for not according approval to the petitioner's promotions totally fails. Even otherwise, admittedly, promotion of number of persons similarly placed as the petitioner, promoted prior to 1974, have been approved by the Government. Thus, there is no rhyme or reason to discriminate the petitioner. I, therefore, have no hesitation to set aside the impugned order Annexue-7 and direct the Authorities to accord approval to the petitioner's promotion to the post of U.D.C. and Head Clerk in consonance with the proposal submitted by the College.
19. Accordingly, the writ application is allowed. No costs.