IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.239 of 2010 Kumarmani Nayak …. Appellant Mr.S.S. Pratap, Advocate -versus- State of Orissa & Others …. Respondents Mr.U.C. Behura, AGA Mr.D.K.Satapathy, Advocate for R.3 CORAM: MR. JUSTICE DIXIT KRISHNA SHRIPAD ORDER Order No. 04.09.2025 19. This appeal by the employee is presented under section 24(C) of the Orissa Education Act, 1969 calling in question the State Education Tribunal’s judgment dated 15.04.2010 whereby his GIA Case No.19 of 2008 has been negatived. 2. Learned counsel for the appellant vehemently argues that in respect of the post in question, i.e., 2nd Post of Lecturer in History, his client was appointed and the said appointment was approved after examining all aspects of the matter and therefore, all of a sudden, five years after the event, the jurisdictional respondent could not have altered the same unilaterally to the prejudice of his client. He further submits that the Tribunal proceeded on a wrong assumption that the appointment of the appellant was to the 3rd Post of Lecturer and therefore, the inference of this Court is warranted. Learned AGA appearing for the official respondents makes a submission in justification of the finding of the Tribunal and the impugned judgment structured on those finding pointing out paragraph-8. Page 2 of 3 3. Having heard the learned counsel for the parties and having perused the appeal papers, this Court declines indulgence in the matter broadly agreeing with the findings recorded by the Tribunal at paragraph-8, which reads as under:- “8. Admitted position in this case are:- (i) The applicant was appointed as Lecturer in History against the 3rd post in 1989 in the college in question (Annexure-5); (ii) Prior to appointment of the applicant, the opposite party no.4 was appointed in 1985; (iii) The applicant was confirmed in service in 1992 (Annexure-6) whereas the opposite party no.4 was confirmed in 1985 (Annexure-C) (iv) The opposite party no.4 secured 53.8% marks in and as per G.O. No.21674/EYS, dtd. 20.06.1979 and No.22586/EYS., dated. 26.6.79 535% above marks be treated as 54%; and (v) The Government Order (Annexure-8) showing the applicant against 2nd post of Lecturer in History for the first time is corrected vide Annexure-9” 4. The vehement submission of learned counsel for the appellant that the deceased-employee, who was respondent no.4 before the Tribunal, was although appointed to the said post, did not possess the requisite qualification and therefore, that appointment should be treated as null and void and further appointment of his client to the said post should be treated with effect from the date he was so appointed, is bit difficult to countenance. The appointment to a post is one thing and possessing the requisite qualification for the post in question is another. If an unqualified person is appointed, unless a challenge is duly laid to the same and it is set at naught, it cannot be gainfully argued that the post was vacant. It hardly needs to be stated that two persons cannot hold the same post with right of lien. The impugned judgment of the Tribunal inarticulately proceeds on this premise, and that cannot be faltered. Even the appellant has retired from service and has been drawing pension based on the position that he was holding, i.e., the 3rd post of Lecturer. 5. The private opponent, whose LRs had been brought on record on demise, had filed his objections to the GIA of the appellant in the Tribunal. On the basis of that, the Tribunal has entered the findings mentioned in para-3 above. The Tribunal being a special body established under the provisions of 1969 Act, as amended, will have advantage of accumulated expertise in matters like this. Though the Appellate Court can examine finding of such an expert body in appeal of the kind, the scope of examination has to be bit limited in the absence of grave error being demonstrated, which, in this case is not. In the above circumstances, the appeal being unworthy of consideration and is liable to be rejected and accordingly. (Dixit Krishna Shripad) Judge Basu Designation: ASST. REGISTRAR-CUM-SR. SECRETARY