JUDGMENT : S.C. Mohapatra, J. - A teacher of an aided educational institution is the petitioner. Being aggrieved by the reduction of his monthly salary and the direction for recovery of the amount alleged to have been drawn in excess, he has approached this Court for a direction under Article 226 of the Constitution. 2. Undisputedly, the petitioner, who was qualified to hold the post, was appointed as the Physical Education Teacher of Fakirpur High School on 1.10.1971 in the scale of pay of Rs. 95-150/- as prescribed under Article 313 of the Orissa Education Code and his initial pay was fixed at Rs. 104/-. Taking into consideration his past experience, the Secretary of the Managing Committee of the school increased his pay to Rs. 108/-per month on 13.1.1972, which was also within the above scale of pay. This was ratified by the Managing Committee in its resolution dated 30.1.1972. The scale of pay of a teacher of Aided Educational Institution provided in Article 313 of the Orissa Education Code which was less than the scale available to his counterpart in Government Educational Institutions was made equal with effect from 1.4.1972 in accordance with the resolution of the State Government. To that effect instructions were issued by the State Government on 21.2.1973; (See Orissa Gazette Supplement dated 9.3.1973 at page 61); which had the effect of bringing the petitioner to the scale of pay of Rs. 100-4-120-5-130-EB-5-155/-. Since fixation of pay in the new scale was necessary, Rule 3 of the aforesaid resolution dated 21. 2. 1973 provided the manner of such fixation. It reads as follows : "(3) On equalisation of pay scales, the fixation of pay of teachers shall be made in the manner as indicated below : (a) Existing incumbents drawing pay in the non-Government scales at less than the minimum of the Government scale, shall be allowed to draw minimum of the corresponding time scale prescribed for Government teachers. (b) Incumbents drawing pay in the existing non-Government scale prescribed for the non-Government teachers, whose pay slab tallies with the slab of Government scale prescribed for Government teachers, shall draw as initial pay on fixation the stage of the corresponding time scale prescribed for Government teachers. If there be no such stage the stage next below that pay plus personal pay equal to the different shall be paid and this personal pay will mergein incumbent's future increments. If there be no such stage the stage next below that pay plus personal pay equal to the different shall be paid and this personal pay will mergein incumbent's future increments. (c) If an incumbent has already reached the maximum of the non-Government scale of pay, he will draw the next increment after completion of one year of service from the date of his pay fixation. (d) The dates of next increment in the cases of (a) and (b) will be on usual date in the Government scale of pay, i e. they will carry these old dates of increment. (e) Before coming over to Government scale of pay existing, incumbents in aided institutions will be asked to exercise an option within a period of six months. If they intend to come over to the Government scale from the 1st April, 1972 or any subsequent date. If no option is exercised within the time limit, it shall be held that they prefer Government scale. Option once exercised shall be final and it shall not be altered. (f) In respect of other cases not coming within the scope of Clauses (a), (b) and (c), the procedure prescribed in the Orissa Service Code and Rules and orders in force will apply mutatis mutandis and individual representation will be disposed of by the concerned Inspector of Schools on merits. Besides effective steps will be taken by Government to remove anomalies, etc., with regard to fixation of pay and increments, if brought to the notice of Government." The Managing Committee taking into consideration the pay drawn by the petitioner on 1. 4. 1972 fixed his pay at Rs. 125/- as disclosed from Annexure-5. This was checked by the Senior Auditor in the office of the Circle Inspector of Schools on 22.10.1973 and was approved by the Inspector of Schools on 26.7.1974. The scare of pay of Matriculate Physical Education Teachers was revised with effect from 1.1.1974 to Rs. 255-5-285-7-32O-EB-10-360/-. Accordingly, the pay of the petitioner was required to be fixed again in the revised scale of pay. This time the office of the Circle Inspector of Schools fixed the pay at Rs. 306/- as on 1.1.1974 in Annexure-6 which was signed by the Circle Inspector on 28.2.1976. 255-5-285-7-32O-EB-10-360/-. Accordingly, the pay of the petitioner was required to be fixed again in the revised scale of pay. This time the office of the Circle Inspector of Schools fixed the pay at Rs. 306/- as on 1.1.1974 in Annexure-6 which was signed by the Circle Inspector on 28.2.1976. When the petitioner was continuing to receive his pay as fixed in the revised scale of pay, the Circle Inspector intimated the Managing Committee on 12.6.1978, as per Annexure-7 that the review of the fixation of pay in respect of the petitioner could not be finalised since the sanction of advance increment granted to the petitioner required approval of the Government. In the said letter, it was intimated that unless the review of the fixation of pay is obtained by the Managing Committee., the pay of the petitioner for June, 1978. would not be passed. On the same day the pay of the petitioner was fixed and the rate of deduction was also intimated in another letter and the Headmaster was directed to prepare the month wise excess or less payment since 1974, as per Annexure-12. Coming to know of the same, the petitioner submitted a representation to the Director as per Annexure-8 for approving the advance increments granted by the Managing Committee. In view of the fact that the petitioner was not getting his pay since July, 1978, he submitted a representation to the Inspector on 28.9.1978 (Annexure-9) to receive the initial pay in the scale under protest pending finalisation of the matter. After the petitioner received the protested pay for some time on 5-12-1978 the Inspector intimated the Headmaster of the School in Annexure-10 that with effect from 1.12.1978 the same would not also be allowed. On 6-12-1978, the Additional Director of Public Instruction (Schools) intimated the Inspector in Annexure-A to pay the salaries deducting the advance increments. So far as recoveries were concerned, it was pointed out that the State Government had been moved to clarify about the. deduction to be made. On 7-12-1978, by issue of Annexure-11, the Circle Inspector superseded Annexure-6 fixing the pay of the petitioner at Rs. 280/- in place of Rs. 306/-. 3. In the background of the aforesaid facts, petitioner has prayed for maintaining Annexure-6 and for directing not to recover any amount which has already been paid. deduction to be made. On 7-12-1978, by issue of Annexure-11, the Circle Inspector superseded Annexure-6 fixing the pay of the petitioner at Rs. 280/- in place of Rs. 306/-. 3. In the background of the aforesaid facts, petitioner has prayed for maintaining Annexure-6 and for directing not to recover any amount which has already been paid. The Circle Inspector has challenged the claim of the petitioner on the ground that without approval of the sanction of the advance increments, payment of the same was not legal and the fixation of pay on that basis was a mistake which was concerned. The petitioner having undertaken pursuant to Annexure-B to refund the amount overdrawn, the recovery is justified. 4. There is no difficulty in directing the Circle Inspector not to recover the excess payment, if any, in view of the letter No. 40077 dated 6-12-1978 of the Additional Director of Public Instruction (Schools), Orissa, Bhubaneswar (Annexure-A ) to the effect that: "...Clarification is being sought for from Government regarding recovery of excess amount already paid to them. The same will be communicated to you when received from Government". The Inspector has not disclosed to this Court if he has received the communication. Accordingly, when the matter is pending consideration of the State Government, there is no scope for recovery of the alleged excess payment, if any, from the petitioner. The Circle Inspector is, therefore, directed not to take steps for recovery of any excess payment till he gets the clarification. In case recovery is attempted to be made on getting clarification, a new cause of action might arise to be agitated by the petitioner. 5. The more important question relates to the fixation of pay of the petitioner. It depends upon the question of validity of enhancement of the pay of the petitioner by the Managing Committee by its resolution dated 30. 1. 1972 which has been the basis of the fixation of pay of the petitioner. 6. Pay of an employee is a condition of service. Employment of a teacher in a private school is a contract. A contract is valid unless the same is contrary to statute. The statute in this case is the Orissa Education Act, 1969 (in short 'the Act') and the Rules made thereunder. 6. Pay of an employee is a condition of service. Employment of a teacher in a private school is a contract. A contract is valid unless the same is contrary to statute. The statute in this case is the Orissa Education Act, 1969 (in short 'the Act') and the Rules made thereunder. On 30.1.1972, the Rules were the provisions in the Orissa Education Code (in short 'the Code) as provided in Section 27 (4) of the Act. Under Article 285 (4) of the Code, it was provided that the recognised schools shall adopt the incremental scales of pay prescribed by Government. Incremental scales of pay for aided schools were prescribed in Article 313. It is profitable to extract Article 285 (4) which reads as follows : "4. Recognised schools shall adopt the incremental scales of pay prescribed by Government (Article. 313). In special cases, such as those where the Director is satisfied that teachers have voluntarily agreed to take less than the prescribed salary from altrustic motives, he may sanction a departure from the prescribed rates. 7. In the year 1972, State Government was paying grants to aided schools. It had only limited control as provided in Article 285 (4) The restriction in the statute was that the salary shall be paid to a teacher in the time scale. Where the teacher would be paid less than the prescribed salary, sanction of the Director was necessary. Payment in the scale giving increments did not require sanction or approval of any authority. The power of regulation of private educational institutions was as provided in the statute and not beyond. Payment 'in the scale with increment to a teacher by the Managing Committee was not contrary to the provisions in the Act or the Code. In the counter affidavit, the Inspector of Schools relies upon Article 313 of the Code to claim that sanction and approval of the Government was necessary. Reading the entire Article 313, I am not able to trace out even an indication to that effect. Therefore, the only possible conclusion on the facts of this case is that the Managing Committee had power to give salary to a teacher in the incremental scale beyond the initial pay and in cases where the teacher is paid less, sanction of the Director was necessary and not otherwise. 8. Therefore, the only possible conclusion on the facts of this case is that the Managing Committee had power to give salary to a teacher in the incremental scale beyond the initial pay and in cases where the teacher is paid less, sanction of the Director was necessary and not otherwise. 8. The State Government while bringing the scales of pay at par in their resolution dated 21.2.1973 could have imposed a condition that one Day of a readier in the scale would be fixed treating him to have drawn the initial pay in the scale while joining the post. No such condition was imposed in Clause (3). Rather the actual pay drawn by the incumbent as on 1.4.1972 was the basis of fixation of his pay in the new scale. In the present case, the fixation of the pay of the petitioner has been made on scrutiny at several phases. After the Managing Committee submitted the proforma. the same was checked on 22.10.1973 by the Senior Auditor of the office of the Inspector who found the same to be correct. Thereafter, like an egg in the incubator, the Circle Inspector kept the matter for consideration for about nine months to approve the same. To permit the Circle Inspector to reopen the matter after about four years to the detriment of the petitioner would amount to travesty of justice specially when neither the statute nor the resolution authorises the Circle Inspector to this effect. In conclusion, the fixation of pay in Annexure-5 is correct and there is no scope to reopen the same. 9. The scales of pay of teachers of Government schools were revised with effect from 1.1.1974. In view of equalisation of the scales of pay, the teachers of aided educational institutions were also entitled to the same. There is no dispute in this regard. The pay in the revised scale was to be fixed on the basis of the pay drawable as on 1.1.1974. The only ground on which the fixation of pay in Annexure-6 is objected to is the same as in the case of fixation of pay in Annexure-5. The basis of the objection having been found by me to be untenable, the Circle Inspector had no scope to interfere with Annexure-6 and as such, super session of the same in Annexure-11 dated 7.12.1978 cannot be sustained. 10. The basis of the objection having been found by me to be untenable, the Circle Inspector had no scope to interfere with Annexure-6 and as such, super session of the same in Annexure-11 dated 7.12.1978 cannot be sustained. 10. The net effect of my discussion as above is that : (a) the payment of salary to the petitioner by giving increment in the scale did not require sanction or approval ; (b) Fixation of pay of the petitioner with effect from 1. 4. 1972 as in Annexure-5 is correct and there is no scope for review of the same and (c) fixation of pay of the petitioner with effect from 1. 1. 1974 as revealed from Annexure-6 is correct and its supersession in Annexure-11 dated 7. 12, 1978 cannot be sustained. 11. In the result, the writ application is allowed with costs. Hearing fee is assessed at Rs.250/- (two hundred fifty). R.C. Patnaik, J. 12. I agree. Final Result : Allowed