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2004 DIGILAW 306 (ORI)

CHINMAYA MISHRA v. STATE OF ORISSA

2004-07-09

B.P.DAS

body2004
JUDGMENT : B.P. Das, J. - The petitioner in the present writ application, who was working as a Demonstrator in the Department of Chemistry in Paradeep College, Paradeep prays for issuance of writ of mandamus directing opposite party No. 3: (i) to release his arrear incremental dues, sanctioned in his favour from the year 1994 to 1997 (ii) to fix his pay suitably when his post was put to the grant-in-aid scale taking into account the last pay drawn by him (iii) to sanction his incremental dues in the scale of pay prescribed for the post of Demonstrator from 1998 onwards and to pay the petitioner his arrear dues within a stipulated period as deemed fit; and (iv) to direct opposite parties 1 and 2 to release 1/3rd salary component of the petitioner with effect from 25.11.1998, 2/3rd salary component with effect from 25.11.2000 and full salary cost with effect from 25.11.2002. 2. The brief facts leading to filing of this writ application are that the post in which the Petitioner was appointed was created by the State Government during the academic session 1992-93, vide Government Order No. 59612 dated 17.12.1992. In the said order, it was stated, in place of the Demonstrator of Chemistry Department, Demonstrator of Physics Department was mentioned which was subsequently corrected by opposite party No. 1 as per his communication to the management of the College, vide Memo No. 55451 dated 23.11.1993 (Annexure-2). According to the petitioner, his appointment in the opposite party No. 3-College was against a sanctioned post, created by the State Government and since the date of his joining, the petitioner was discharging his duties to the best satisfaction of the authorities. The appointment of the petitioner was approved by the opposite party No.2, vide Memo No. 731 dated 2.8.1994. According to the petitioner as per the grant-in-aid principles, a post in an aided institution becomes eligible to grant-in-aid at the rate of 1/3rd of the salary cost after five years of its creation, 2/3rd after seven years and full salary cost after nine years of the creation. The petitioner contends that since his post was created in the year 1992-93 session, he was eligible to receive grant-in-aid at the rate of 1/3rd of his salary component from 1.6.1998, 2/3rd from 1.6.2000 and full salary cost from 1.6.2002. The petitioner contends that since his post was created in the year 1992-93 session, he was eligible to receive grant-in-aid at the rate of 1/3rd of his salary component from 1.6.1998, 2/3rd from 1.6.2000 and full salary cost from 1.6.2002. According to the petitioner, he was paid his salary component from the date of his joining the college and his first annual increment was due in the year 1994. The petitioner was paid his increments in the time scale of pay of Rs. 1400-2600/- for the years 1994 to 1997. According to the petitioner, Annexures-4 and 5 clearly show that though he was granted his annual increments during the years 1994 to 1996, no arrear was granted to him but his pay was notionally fixed enhancing the same from Rs. 1400/- to Rs. 1520/- as on 1.11.1996 and thereafter from Rs. 1520/ to Rs. 1560/- with effect from 1.11.1997. The further case of the petitioner is that his increments which were due on 1.11.1998, 1.11.1999 and 1.11.2000 were not sanctioned although the same were normally to be sanctioned in his favour. It is averred in the writ application that an office order was passed and communicated to the Petitioner by the Principal of opposite party No.3 - College, vide Annexure-6 indicating that since the employees (including the petitioner) mentioned therein were due to get their salary component from the State Government, they were not entitled to get their annual increments until they were approved for direct payment of salary cost by Government under the grant-in-aid principles, for which the proposal had been made. 3. On perusal of Annexure-6, it appears that the management decided that the petitioner was entitled to get his salary component from the State Government with effect from 25.11.1998. The increments of salary as due and admissible to the Petitioner were to be allowed after direct payment of salary to him by the Government. According to the petitioner, he was continuing to get his salary component from the Governing Body as salary from State Government was yet to be released. The increments of salary as due and admissible to the Petitioner were to be allowed after direct payment of salary to him by the Government. According to the petitioner, he was continuing to get his salary component from the Governing Body as salary from State Government was yet to be released. But the Principal-cum-Secretary of the College intimated the petitioner that since the petitioner was to get his salary component in accordance with the grant-in-aid principles, he having been appointed against an approved post, the college was not liable to pay him salary any more from 1.6.2003 as the post had already matured for full salary cost having completed nine years. As a result, the petitioner is not being paid his salary from 1.6.2003. 4. A counter affidavit has been filed by the State Government, wherein a stand was taken that the petitioner?s post was approved by the competent authority on 25.7.1994, i.e. after the academic session 1993-94. Therefore, the petitioner is not eligible for grant-in-aid as the Government has not considered the case of such persons who are eligible to receive grant-in-aid beyond 1.6.1994 after introduction of the Orissa Education (Amendment) Act, 1994. The further case of the State is that because of the provisions of Section 7-C of the Orissa Education Act and as there is paucity of funds, the petitioner is not to get his salary component at present. Further the counter affidavit discloses that the post in question was a management post which had been created in the academic session 1992-93 and the service of the petitioner for the purpose of grant-in-aid was to be reckoned from 1.6.1994, i.e., from the beginning of the next academic session. Therefore, the petitioner is entitled to grant-in-aid from 1.6.1999. But the financial concurrence has not been accorded to the post of the petitioner by the Government till date. Further the State Government has not taken any decision after 1.6.1994 for release of grant-in-aid in favour of the employees of non-Government colleges of the State, those who have become eligible to receive grant-in-aid. It has not been done due to the financial constraint of the Government and thousands of teaching and non-teaching staff of non-Government colleges are waiting to receive grant-in-aid. Since it is a policy matter, the Government is yet to take decision in the matter and the petitioner has to wait. It has not been done due to the financial constraint of the Government and thousands of teaching and non-teaching staff of non-Government colleges are waiting to receive grant-in-aid. Since it is a policy matter, the Government is yet to take decision in the matter and the petitioner has to wait. It is further stated in the counter that the claim of the petitioner for release of grant-in-aid can only be considered when the State Government takes a decision for releasing grant-in-aid in favour of the employees of non-Government Aided Colleges of the State approved after 1.6.1994. 5. A counter affidavit has also been filed by the Principal-cum-Secretary of Paradeep College, opposite party No. 3 taking a stand that under Rule 9 of the Recruitment Rules, 1974 the petitioner is entitled to draw the salary component from the State Government as he is coming under the grant-in-aid policy of the Government. According to opposite party No. 3, the claim of the petitioner is genuine and after appointment of the petitioner, opposite party No. 3 granted his increments of salary from 1994 to 1977, vide order dated 19.8.1997. But after receipt of Govt. order opposite party No. 3 did not sanction the increments of the Petitioner and adhering to the notification dated 21.11.1994 issued by the Department of Higher Education, opposite party No. 3 issued a letter under Annexure-6 to the petitioner that the Government had decided to release the salary in starting scale of pay from the date of the grant-in-aid and to compute the increments from the date of grant-in-aid instead of the date of joining. According to opposite party No. 3, though he had sanctioned increments in favour of the petitioner time to time, after the Govt. decision it was not possible on his part to pay increments to the petitioner. According to opposite party No. 3, he has also issued a letter to the Deputy Director (NGC-1), Annexure-B/3, regarding release of the grant-in-aid in favour of the petitioner. 6. Basing upon the aforesaid facts as narrated by different parties, now we have to see whether the petitioner can succeed in the writ application. 7. Before going into the merits of the case, it is pertinent to have a look at Annexures 2 and 3. Annexure-2 is the order of the Director, Higher Education approving creation of non-teaching posts in Paradeep College, Paradeep during the academic session 1992-93. 7. Before going into the merits of the case, it is pertinent to have a look at Annexures 2 and 3. Annexure-2 is the order of the Director, Higher Education approving creation of non-teaching posts in Paradeep College, Paradeep during the academic session 1992-93. It shows that in partial modification of the Govt. order No. 59612 dated 17.12.1992, the posts of Demonstrator and Laboratory Attendant in Physics Department mentioned against Paradeep College, Paradeep at serial No. 3 of the statement were substituted as 'Demonstrator in Chemistry and Laboratory Attendant in Chemistry?. Annexure 3 is an order issued by the Director, Higher Education, Orissa in exercise of the powers conferred under Article 133 of the Orissa Education Code indicating that the appointment of the non-teaching staff of Paradeep College, Paradeep from the date mentioned against each in the prescribed scale of pay under grant-in-aid principles as against the present petitioner, the date of his joining being mentioned as 25.11.1993. It is revealed that in the remarks column, the following was written: The post of Demonstrator, Chemistry and Laboratory Attendant Chemistry created vide G.O. No. 59612 dated 17.12.92 and 55449/-HE dated 23.11.93 under grant-in-aid principle 8. So such posts had been created by the State Government from the academic session 1992-93. The post facto approval in Annexure-3 also indicates that the posts of Demonstrator Chemistry and Laboratory Attendant Chemistry were created on 17.12.1992 and 23.11.1993 respectively. Annexure-3 is clear to the extent that the approval of the appointment of the petitioner was made against a post created by the State Government under the grant-in-aid principle, vide order dated 17.12.1992. The conclusion would be that when the petitioner joined on 25.11.1993, he was entitled to get salary component from the State Government from 25.11.1998 at the rate of 1/3rd and 2/3rd from 25.11.2000 and the full salary cost from 25.1.2002. 9. It is worthwhile to mention here that the college in which the petitioner is employed is under the grant-in-aid fold of the State Government. It is not a new college. Annexure-3 is very clear regarding creation of post of Demonstrator in Chemistry Department, vide G.O. No. 59612 dated 17.12.1992. The plea of the State that the post was approved on 25.7.1994 after academic session was over on 1.6.1994 is not correct and runs contrary to Annexure-3. It is not a new college. Annexure-3 is very clear regarding creation of post of Demonstrator in Chemistry Department, vide G.O. No. 59612 dated 17.12.1992. The plea of the State that the post was approved on 25.7.1994 after academic session was over on 1.6.1994 is not correct and runs contrary to Annexure-3. So far as the State Govt's. plea that due to paucity of funds grant-in-aid in favour of the college has not been released beyond 1.6.1994 is concerned, it is revealed that the case of the petitioner for grant-in-aid comes from 1.6.1994 as per Annexure-3. So far as non-payment of grant-in-aid by the State on the plea of paucity of fund is concerned, law is well settled in this regard and in a recent decision of this Court in OJC No. 126 of 2001 (Prafulla Kumar Sahoo v. State of Orissa) delivered on 1.1.2002 this Court held as follows: Orissa is a State with large sections of people including Scheduled Castes and Scheduled Tribes who are illiterate and backward. Consistent with the Directive Principles of the State Policy in Articles 41,45 and 46 of the Constitution the Legislature has imposed a mandate on the State Government under Sub-section (1) of Section 7-C of the Orissa Education Act to set apart a sum of money annually for being given as grant-in-aid to private educational institutions in the State subject to the limits of its economic capacity. The State Government has also made the grant in aid Order 1994 under Sub-section (4) of Section 7-C of the Orissa Education Act clearly indicating the relevant factors to be taken into consideration for deciding the eligibility of an educational institution or a member of teaching or non-teaching staff of such educational institution keeping in mind the educational needs of the State. The State Government cannot ignore such legislative mandate as well as the Directive Principles of State Policy and the statutory provisions of the Grant-in-Aid Order, 1994. Unless, therefore, there are other more pressing needs than education, the State Government must set apart sufficient money for making payment of grant-in-aid to educational institutions or their teaching or non-teaching staff in accordance with the Grant-in-aid Order, 1994. 10. In this view of the matter, the writ application is allowed. Unless, therefore, there are other more pressing needs than education, the State Government must set apart sufficient money for making payment of grant-in-aid to educational institutions or their teaching or non-teaching staff in accordance with the Grant-in-aid Order, 1994. 10. In this view of the matter, the writ application is allowed. The opposite parties are directed to take a decision for release of the grant-in-aid in favour of the petitioner within a period of three months from the date of this order. Till that date opposite party No.3 is directed to go on paying the salary of the petitioner. Final Result : Allowed