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2002 DIGILAW 453 (ORI)

SRI JITENDRA KUMAR PATI v. STATE OF ORISSA

2002-07-24

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT : A.K. Patnaik, J. - The Petitioner secured 52.5% marks in M.A. in English and was appointed as Lecturer in English by order dt. 10.12.1980 of the Secretary, Kunjabihari College, Baranga in the district of Puri Pursuant to the said appointment, he joined as Lecturer in English in the College on 18.12.1980. On 13.9.1983, the Government of Orissa, Education and youth Service Department adopted a Resolution prescribing the qualification for recruitment of Lecturers in affiliated Colleges of the State of Orissa. As per the said Resolution candidates who were not holding a M. Phil degree were required to possess a high second class Master's degree with 54% of marks for being appointed as Lecturers in affiliated Colleges of the State. Since the Petitioner had secured less than 54% of marks in M.A. in English, the University authority was moved for condoning the deficiency in qualification of the Petitioner and by a Memo dt. 28.10.1987 Registrar. Utkal University informed the Secretary Kunjabihari College. Baranga that the Syndicate in its meeting has been pleased to condone the deficiency in qualification of the Petitioner on consideration of the Resolution passed by the Senate. Thereafter, the Director of Higher Education by his Office order dt. 10.8.1988 provisionally approved the appointment of the Petitioner to the post of Lecturer in English and in the said order dt. 10.8.1988 stipulated that the post held by the Petitioner would become eligible for 1/3rd grant-in-aid with effect from 18.12.1985. The Principal of the College then wrote to the Director. Higher Education Orissa in his letter dt. 10.9.1988 that since the College got the affiliation since June, 1979, the Petitioner was eligible to' get 1/3rd grant-in-aid with effect from 1.6.1984 and not from 18.12.1985 and correction may be made accordingly in the Office Order dt. 10.8.1988 of Director, Higher Education Orissa. The Principal of the College again wrote a letter dt. 22.9.1989 to the Director. Higher Education, Orissa reiterating his request to correct the date of eligibility of the Petitioner for grant-in-aid with effect from 19.8.1984 instead of 18.12.1985. Despite the said letters of the Principal of the College, the Office order dt. 10.8.1988 of the director Higher Education Orissa was not correct and the result is that the Petitioner has been given 1/3rd grant-in-aid with effect from 18.12.1985 instead of 1.6.1984. Despite the said letters of the Principal of the College, the Office order dt. 10.8.1988 of the director Higher Education Orissa was not correct and the result is that the Petitioner has been given 1/3rd grant-in-aid with effect from 18.12.1985 instead of 1.6.1984. Further, for the period from 18.12.1985 onwards the Petitioner was not been paid salary in the U.G.C. scale and the Petitioner's case is that he was entitled to U.G.C. scale as revised from time to time with effect from 1.1.1986. The Petitioner has prayed for a direction to opposite party No. 4 to treat the eligibility of the Petitioner to received grant-in-aid from June. 1984 instead of December, 1934 and to direct the opposite parties to fix the pay of the Petitioner as per U.G.C. scale with effect from 1.1.1986. 2. Mr. J.K. Rath, learned Counsel for the Petitioner submitted that by a Circular No. 11131 dt. 17.3.1983, the Government of Orissa, Education and Youth Services Department has clarified that for the purpose of computing qualifying period of 5 years for a College to receive grant-in-aid, the date with effect from which the College has been accorded Government concurrence shall be taken into account. He submitted that since the Government accorded its concurrence to the Kunjabihari College. Baranga from the academic Session 1979-80, the qualifying period of 5 years will have to be computed from 1.6.1979 and so computed the post of Lecturer in English held by the Petitioner would be eligible for 1/3rd grant-in-aid with effect from 1.8.1984. 3. Mr. Das. learned Additional Government Advocate, on the other hand, relying on the averments in paragraph-5 of the Counter Affidavit filed by opp. party No. 2 contended that although the College got concurrence and affiliation for the academic session 1979-80 and became eligible to receive grant-in-aid from 1.6.1984, due to appointment of under qualified persons in the said posts and deficiency of incumbents not being condoned till their resignation, the post became eligible to receive grant-in-aid from the date of Petitioner's joining on 18.12.1980, and, therefore, in the Office order dt. 10.8.1988 of the Director of Higher Education Orissa, it was stipulated that the date from which the post will become eligible to get 1/3rd grant-in-aid is 18.12.1985. 4. Circular No. 11131 dt. 17.3.1983 of the Government of Orissa, Education and Youth Services Department on which reliance has been placed by-Mr. 10.8.1988 of the Director of Higher Education Orissa, it was stipulated that the date from which the post will become eligible to get 1/3rd grant-in-aid is 18.12.1985. 4. Circular No. 11131 dt. 17.3.1983 of the Government of Orissa, Education and Youth Services Department on which reliance has been placed by-Mr. Rath is extracted hereinbelow: GOVERNMENT OF ORISSA. EDUCATION AND Y.S. DEPARTMENT NO. VE/G.5/B2. 11131/EYS 17.3.1983. From : Sri D.D.Jena. O.E.S. (1) Deputy Secretary to Government To The Director of Public Instruction (H.E.) Orissa, Bhubaneswar, Sub : Direct payment of full salary cost to the staff of non-Government Colleges in the State maturing for grant. Sir. In continuation of G.O. No. 19462-EYS dated 27.5.1978 I am directed to say that direct that payment of full salary cost of the teaching and non-teaching staff of non-Govt. Colleges as admissible according to the prescribed yardsticks shall be payable to such colleges which have been, accorded Govt, concurrence prior to the academic session 1979-80. The Colleges who have received Government concurrence with effect from the academic session 1979-80 or thereafter until further orders shall be governed by the new grant-in-aid principles as detailed below: (i) Colleges in advance areas will receive 1/3rd of the deficit as grant-in-aid after 5 years from the date of Government concurrence (recognition) 2/3rd after 7 years an full deficit after 9 years. (ii) in Backward areas these periods will be 3.5 and 7 years respectively. In the context the criteria for determining an area to be backward wilt be the same as is applicable to High Schools approved by Government. For the purpose of computing qualifying period of 5 years for a College to receive grant-in-aid, the date with effect from which the college has been accorded Government concurrence shall be taken Into account. Yours faithfully. Sd/ - D.D. Jena 17.3.1983 Deputy Secretary to Government It is clear from the aforesaid Circular issued by the Government of Orissa. Education and Y.S. Department that Colleges which have received Government concurrence with effect from the academic sessions 1979-80.or thereafter are to be governed by new grant-in-aid principle as indicated therein and so far as the colleges in advanced area are concerned such colleges will get 1/3rd of the deficit grant-in-aid after 5 years of the Government concurrence (recognition). Education and Y.S. Department that Colleges which have received Government concurrence with effect from the academic sessions 1979-80.or thereafter are to be governed by new grant-in-aid principle as indicated therein and so far as the colleges in advanced area are concerned such colleges will get 1/3rd of the deficit grant-in-aid after 5 years of the Government concurrence (recognition). The last portion of the said Circular further clarifies that for the purpose of computing the period of five years for a college to get grant-in-aid the date with effect from which the college has been accorded Government concurrence should be taken into account. In the aforesaid Circular, there is no indication whatsoever that if the post is held at any particular time by person who is not qualified for the post, the period during which the said post is held by persons with deficient qualification will' not be counted for the purpose of computing the qualifying period of five years. Hence, it is difficult to accept the submission of Mr. Das, learned Additional Government-Advocate that the period of five years would be counted only from 18.12.1985 when the Petitioner-joined as Lecturer in English in the post for which grant-in-aid has been approved; As per the aforesaid Circular No. 11131 dt. 17.3.1983 of the Government of Orissa, Education and Youth Services Department, the eligibility to receive 1/3rd of the deficit grant-in-aid was with effect from 5 years from the date of Government concurrence to the College. It is not disputed that Kunjabihari College, Baranga received Government concurrence from the academic Session 1979-80 with effect from 1.6.1979. As a matter of fact: other posts of Lecturers in the said College have been allowed 1/3rd grant-in-aid with effect from 1.6.1984. We fail to appreciate as to why the Petitioner should be denied grant-in-aid with-effect from 1.6.1984 contrary to the stipulations in the aforesaid Circular No. 11131 dt. 17.3.1983 of the Government of Orissa, Education and Youth Services Department.1 5. Coming now to the claim of the Petitioner to U.G.C. revised scale of pay with effect from 1.1.1986, Mr. Rath, learned Counsel for the Petitioner, submitted that by Resolution dt. 17.3.1983 of the Government of Orissa, Education and Youth Services Department.1 5. Coming now to the claim of the Petitioner to U.G.C. revised scale of pay with effect from 1.1.1986, Mr. Rath, learned Counsel for the Petitioner, submitted that by Resolution dt. 6.10.1989 of the Government of Orissa, Education and Youth Services Department, the Government announced revised scales for all categories of Lecturers working in all affiliated Government Colleges and aided Non-Government Colleges either covered or eligible to be covered under the direct payment schemes till 1.4.1989 and the revised scales of pay where to be effective from. 1.1.1986. He referred to para 3.3 of the said Resolution dt. 6.10.1989 of the Government of Orissa to show that Lecturers were to be given Revised Scale of pay of Rs. 2200/-4000/-irrespective of their qualification. He argued that under Rule-9 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the staff of Aided Educational Institution) Rules, 1974 (for short 'the Rules 1974') every employee of an Aided Educational Institution is entitled to draw the same pay and D. A. as is admissible to his counter part in the Government institution under the relevant rules applicable to him. According to Mr. Rath, since a Lecturer in Government College has been granted revised U.G.C. Scale of pay of Rs. 2000/-4000/- with effect from 1.1.1986, the Petitioner who is a Lecturer of an Aided Educational Institution is also entitled to the same. He further argued that the deficiency in the qualification of the Petitioners, if any had been condoned by the University. A Division Bench judgment of this Court in Bharat Chandra Behera and Anr. v. State of Orissa and Ors. (O.J.C. 6101 of 1995) has held that a Lecturer of an Aided Institution was entitled to U.G.C. Scale of pay in accordance with the said Resolution dt. 6.10.1989. He pointed out that a Review petition numbered as Civil Review No. 65 of 1997 was filed by the State of Orissa against the said judgment in O.J.C. No. 6101 of 1995 wherein the State Government took a plea that the Lecturer who did not have the qualification prescribed by U.G.C. were not entitled to get U.G.C. scale of pay from 1.1.1986 as indicated in the Resolution of the Government of Orissa dt. 6.11.1990, but the Division Bench of this Court in its judgment dt. 6.11.1990, but the Division Bench of this Court in its judgment dt. 9.8.2001 dismissed the revision petition holding that once the deficiency in the qualification is condoned, the Lecturer is entitled to U.G.C. scale with effect from 1.1.1986. Mr. Rath also relied on a decision of a learned Single Judge of this Court in Kalidas Mohapatra, Rajkishore Routray, Basudev Mohanty and Shyamaghana Mishra Vs. State of Orissa and Others. Mr. Rath pointed out that although the Government filed a SLP before the Supreme Court against the said judgment (sic) learned Single Judge in the case of Kalidas Mohapatra v. State of Orissa and Ors. connected case, the SLP has been dismissed by the Supreme Court. Finally, Mr. Rath argued that in any case, the Petitioner took the M. Phil Examination way back in 1985 and the result of the M. Phil examination was declared on 8.6.1989 and as per the said result, the Petitioner has passed M. Phil qualification. According to Mr. Rath, the Petitioner having taken the M. Phil examination in the year 1985 cannot be made to suffer on account of delay of five years for publication of the result of M. Phil Examination in June. 1989 and the Petitioner should be treated as having acquired M. Phil qualification in the year 1935 and entitled to revised U.G.C. Scale effective from 1.1.1986. 6. Mr. Das. learned Additional Government Advocate, on the other hand, relying on the averments in para-8 of the Counter affidavit filed on behalf of opp. party No. 2 submitted that in the. Resolution dated 6.11.1990 of the Government of Orissa. Education and Youth Service Department, the Government while deciding to implement the scheme for revision of pay for College teachers serving in Aided non-Government Colleges of the State clarified in para-2 of the said Resolution that the instruction for revision of pay scale for Aided Non-Government Colleges in the said Resolution dt. 6.11.1990 shall not apply to teachers whose qualifications/norms are below the qualification/norms prescribed by the U.G.C. even if such lack of prescribed qualification/norms has been condoned by Government/University. He cited the decision of the Supreme Court in University of Delhi Vs. 6.11.1990 shall not apply to teachers whose qualifications/norms are below the qualification/norms prescribed by the U.G.C. even if such lack of prescribed qualification/norms has been condoned by Government/University. He cited the decision of the Supreme Court in University of Delhi Vs. Raj Singh and others, for the proposition that the U.G.C. can prescribe a qualification for the post of a teacher and contended that a person who does not have the qualification prescribed by the U.G.C. cannot claim the U.G.C. Scale of pay as revised with effect from 1.1.1986. He also cited the decision of the Supreme Court in Suryanarayan Sahu v. Council of Scientific and Industrial Research AIR 1998 SC 545 for the proposition that different scales of pay can be prescribed based on experience and merit of the employees working in the same grade, and that a person in a different clarification based on such experience and merit cannot claim equality of pay on the principle, of equal pay for equal work under Article 39 (d) read with Article 16 of the Constitution. Mr. Das. vehemently argued that since the Petitioner did not have the U.G.C. qualification at the time of his appointment he cannot claim the pay scale of Government College Lecturers who had U.G.C. qualification. 7. In the two decisions University of Delhi v. Raj Singh and Ors. (supra) and Suryanarayan Sahu v. Council of Scientific and Industrial Research (supra), the Apex Court was not confronted with the kind of rule as in Rule 9 of the Rules. 1974 which provides for payment of pay and dearness Allowance to the employees of the Aided Educational Institution. Sub-rule 1 of Rule - 9 of the said Rules 1974 is quoted herein below: 9. Drawal of pay and allowance by employees of Aided Institutions (1) Every employers of an Aided Educational Institution shall draw the same pay. dearness allowance and subsistence allowance in case of suspension as is admissible to counterpart in the Government educational Institutions under the relevant rules applicable to him and shall ordinarily be paid in the month to which the claim relates directly by Government or by any Officer or by any Agency authorised by the Government. It will be clear that under the aforesaid Sub-rule 1 of Rule - 9 of Rules. It will be clear that under the aforesaid Sub-rule 1 of Rule - 9 of Rules. 1974 every employee of every aided educational Institution is entitled to draw the same pay and dearness allowance as is admissible to his counter part in the Government Educational Institutions under the relevant rules applicable to him and such drawal of the same pay and dearness allowance is not made subject to the employee of the Aided Educational Institution having the same qualification as those of his counterpart in the Govt, educational institution. 8. The resolution dt. 6.10.1989. Government of Orissa. Education and Youth Services Department only contains the decision of the Government to revise with effect from 1.1.1986 the scale of pay of all the affiliated Government Colleges either covered or eligible to be covered under direct payment scheme till 1.4.1989. The said division of the Government of Orissa, Education and Youth Services Department has been given effect to by Orissa Revised Scale of pay (For College Teachers) Rulers, 1989 (for short the Rules 1989) which is deemed to have come into force with effect from 1st January, 1986. The relevant portion of Rules 2 and the first schedule of the Rules. 1989 which fixes the revised scale of pay of Lecturer in the employment of Government in general Colleges with effect from 1.1.1986 is extracted herein below: 2. Categories of Government Servants to whom the Rules apply: (i) Save as otherwise provided by or under these rules, these shall apply to persons in whole time employment of Government in posts/service in respect of which revised scales are specified in the First Schedule appended to these rules, and the Orissa Revised Scales of Pay Rules, 1985 and the Orissa Revised Scales of Pay Rules, 1989 shall not apply to them. First Schedule Sl. No. Name of the post Existing scale of pay Revised scale of pay A. General Colleges 1. Lecturer, Rs. 700-1600 Rs. 2,200-4000 (with Rs. 1350-2975 three advance increment for Ph. D and one advance increment for M. Phil at initial on first appointment) B. College of Accountancy and Management Studies for teachers having qualification prescribed by the U.G.C.) 1. Principal-cum-Professor Rs. 2550-3650 Rs. 4500-6300 2. Professor Rs. 2550-3650 Rs. 4500-6300 3. Associate Professor/Reader Rs. 2250-3500 Rs. 3700-5700 4. Lecturer Rs. 1350-2975 Rs. 1350-2975 three advance increment for Ph. D and one advance increment for M. Phil at initial on first appointment) B. College of Accountancy and Management Studies for teachers having qualification prescribed by the U.G.C.) 1. Principal-cum-Professor Rs. 2550-3650 Rs. 4500-6300 2. Professor Rs. 2550-3650 Rs. 4500-6300 3. Associate Professor/Reader Rs. 2250-3500 Rs. 3700-5700 4. Lecturer Rs. 1350-2975 Rs. 2200-4000 (With three advance, increments for Ph.D. and one advance increment for M. Phil at initial on first appointment. It will be clear from the aforesaid Sub-rule -1 of Rule-2 and the first schedule quoted above that Lecturer in Government employment in general Colleges who were drawing/pay in the scale of Rs. 700 - 1600/- and Rs. 1350 - 2975/- were given one uniform revised scale of pay Rs. 2200 - 4000/- with effect from 1.1.1986. No mention has been made in the aforesaid first schedule quoted above that only Lecturers having U.G.C. qualification would be entitled to revised scale of pay Rs. 2200 - 4000/- This is m contrast to the teaching staff of all Management studies in employment of the Government who have been given the revised scale of pay as mentioned in the first Schedule of the Rules, 1989, if only they have the qualification prescribed by the U.G.C. If the Lecturers of General Colleges in whole time employment of the Government were entitled to draw revised scale of pay with effect from 1.1.1986, in Rs. 2200 - 4000/- then by virtue of the provisions' in Rule - 9 of the Rules. 1974, Lecturers working in Aided' 2:49 PM 4/4/2011 revised scale of pay Rs. 2200 - 4000/- with effect form 1.1.1986. The entitlement to draw the revised scale of pay of Rs. 2200 - 4000/- we, may clarify is not by virtue of provisions of Article 16 or Article 39(d) of the Constitution, but by virtue of the statutory provisions in Rule-9 of the Rules, 1974. The Rules, 1974, it is not disputed, have been made under the Orissa Education Act, 1969 and therefore have statutory force and the' benefit given by such statutory provisions cannot be taken away by the Resolution dt. The Rules, 1974, it is not disputed, have been made under the Orissa Education Act, 1969 and therefore have statutory force and the' benefit given by such statutory provisions cannot be taken away by the Resolution dt. 6.11.1990 of the Government to the effect that the teachers whose qualification/norms are below the qualification/norms prescribed by the U.G.C. even if such lack, of qualification has been condoned by the Government/University, would not be entitled to the revised scale of pay as per the Resolution dt. 6.10.1989 of the Government namely U.G.C. in the revised scale of pay. 9. A Division Bench of this Court in State of Orissa v. Bharat Chandra Behera and Anr. in its judgment dt. 9.8.2001 in Civil Review No. 65 of 1997 had the occasion to consider as to whether Lecturers who were deficient in their qualification for appointment as Lecturers at the time of their appointment would be entitled to revised scale of pay Rs. 2200 - 4000/- with effect from 1.1.1986 and the Division Bench held: So far as the opp. parties are concerned, the Utkal University had condoned the deficiency in the qualifications of the Opp. parties who had secured less than 54 per cent marks at the post-Graduate level. Subsequently both the opp. parties obtained Ph. D and M.Phil degree respectively. In the said Resolution dt. 6th October, 1989 it was stipulated that the revised scale of pay and other measures for improvement of standards in higher education shall be applicable to all categories of full time teachers working in all affiliated Government Colleges and aided Non-Government Colleges either covered or eligible to be covered under direct payment schemes till 1.4.1989. The said Resolution further stipulated that the revised scales of pay shall be effective from 1.1.1986. Considering the said Resolution and the facts of the case the Court observed that the case of the opp. parties come within the time frame mentioned fn paragraph 3.1 of the Resolution dt. 6th October, 1989 and accordingly are entitled to U.G.C. scale of pay. xxx xxx xxx Admittedly the deficiency in qualifications of appointment as teachers has been condoned by the University and accordingly appointments of the opp. parties as Lecturers cannot be questioned and therefore they are, covered under Clause 3.1 of the Resolution dated 6th October 1989. 5. 6th October, 1989 and accordingly are entitled to U.G.C. scale of pay. xxx xxx xxx Admittedly the deficiency in qualifications of appointment as teachers has been condoned by the University and accordingly appointments of the opp. parties as Lecturers cannot be questioned and therefore they are, covered under Clause 3.1 of the Resolution dated 6th October 1989. 5. So far as the argument advanced by the learned Additional Government Advocate with regard to the Resolution of the State Govt. dated 6th November. 1990 is concerned, it appears that no argument was advanced on the basis of the said Resolution at the time of hearing of the writ application. However in Anr. batch of writ application. Namely OJC os. 15062 and 15063 and 243 and 254 of 1997, disposed of on December 21, 2000. the said Resolution was taken into consideration and this Court held that the effect of the Resolution dated 6th October, 1989 on the basis of which the judgment under challenge has been delivered cannot be taken away by the Resolution dated 6th November, 1990. The aforesaid decision of the Division Bench is binding on us and applies to the facts of the present case. Moreover, in addition to the reasons given by the Division Bench in the aforesaid judgment in the case of State of Orissa v. Bharat Chandra Behera and Anr. the Petitioners would be entitled to the revised scale of pay of Rs. 2200-4000/- with effect from 1.1.1986 by virtue of Rule - 9 of the Rules. 1974. 10. For the aforesaid reasons, we allow this writ petition and we direct that the Petitioner would be entitled to 1/3rd grant-in-aid with effect from 1.6.1984 instead of 18.12.1985 and would be entitled to scale of pay Rs. 2200-4000/- with effect from 1.1.1986. The current pay of the Petitioner at the revised scale as directed above will be paid forthwith and the arrears oh account of such revised scale of pay with effect from 1.1.1986 will be paid to the Petitioner within a period of six months from today. M. Papanna, J. 11. I agree.