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2009 DIGILAW 931 (ORI)

Balakrishna Sahu v. State of Orissa

2009-12-07

N.PRUSTY

body2009
ORDER JUSTICE N. PRUSTY, J. — The applicant, who was initially working as a Peon in Panchayat High School, Padiabhanga in the district of Angul under the Administrative control of Inspector of Schools, Dhenkanal circle and the school in question was taken over as per Government Notification dated 16.12.1994 w.e.f. 07.06.1994, has filed this O.A. with a prayer for a direction to the respondent to allow the applicant to avail the benefit of incentive allowance on the strength of Green Card with effect from the date of taken over of the said institution by the State Government, on quashing the impugned order dated. 26.10.1999 (Annexure-6) passed by the Inspector of Schools Dhenkanal Circle, Dhenkanal. Heard Mr. K.K. Swain, learned counsel for the applicant and Mr. Jee, learned standing counsel for S.M.E. Mr. Swain, learned counsel submits that initially the appli¬cant was working in an aided Education institution and accordingly he was getting salary from the Government under Rule-9 of 1974 Rules. Once the school is taken over by the appropriate Government by virtue of a resolution with effect from 7.6.1994 for all practical purpose the applicant became a Government servant. As such all such pay and allowances which are being ex¬tended in favour of any Government employee, the applicant is also entitled for the same benefit. Since Government servant having a Green Card with one child are entitled to incentive allowance equal to twice the amount of increment, while those with two children will be entitled to incentive allowance equal to the amount of one increment, the applicant is also entitled for similar benefit. The applicant had earlier approached this Tribu¬nal in O.A. No.420(C)/1999. The said O.A. was disposed of on 01.03.1999 with a direction to the Inspector of Schools, Dhenka¬nal to examine and consider the matter as per guide lines of the Government, under Annexure-3, within one month from the date of receipt of a copy of this order. In compliance with the said order, while considering the claim of the applicant treating the paper book as his representa¬tion, the Inspector of Schools vide order dated. In compliance with the said order, while considering the claim of the applicant treating the paper book as his representa¬tion, the Inspector of Schools vide order dated. 26.10.1999 disposed of the same with the observation that “the claim of Sri Balakrishna Sahoo, the applicant, for sanction of incentive allowance under the benefit of Green Card holder, as per guide lines under Annexure-3 which is applicable to him, as he was not a Government servant at the time of operation and accordingly rejected in terms of full bench Judgment of the Hon’ble High Court of Orissa in O.J.C. No.5791 of 1994 decided on 06.02.1996.” Mr. Swain, learned counsel further submits that the O.J.C. No.5791/94, which was decided by the full bench of Hon’ble High Court of Orissa on 06.02.1996, was filed by the aided school teachers for the benefit of incentive allowance extended in favour of the Green Card Holders in terms of the Rule-9 of 1974 Rules. While disposing of the said case the full bench of the Hon’ble Court has observed that teachers of aided educational institution are not entitled to the benefit of two increments, even if they are green card holders by references of Rule-9 of 1974 Rules. So far as the applicant is concerned he is not claim¬ing benefit of incentive allowance being a green card holder from the date while he was working in an aided educational institu¬tion. In the earlier O.A. i.e. O.A. No.420(C)/1999 and also in this O.A. the applicant has only prayed for the benefit of incentive allowance of one increment w.e.f. from the date the school was taken over. As such since the applicant also became a Government servant for all practical purpose w.e.f. 07.06.1994 along with all other similarly placed teachers he is also enti¬tled to all such benefits which is being extended in favour of all Government servants and in that view of the matter the order dated. 26.10.1999 of the Inspector of Schools, Dhenkanal circle (Annexure-6) is completely unjust, illegal and not in conformity with the principle of law as well as the decision of the Hon’ble High Court and as such it is liable to be set aside. Mr. 26.10.1999 of the Inspector of Schools, Dhenkanal circle (Annexure-6) is completely unjust, illegal and not in conformity with the principle of law as well as the decision of the Hon’ble High Court and as such it is liable to be set aside. Mr. Jee, learned standing counsel for the S.M.E. fairly submits that the ratio of the decision in the case of Purna Chandra Mohant (O.J.C. No.5791/1994) cannot be made applicable to the case of the present applicant, since the applicant no more remained an employee of an aided educational institution w.e.f. 7.6.94 by virtue of resolution dated. 16.12.1994 and the case of Purna Chandra Mohant was completely relating to the entitlement of the benefit of being a Green Card holder, so far as employees of an aided education institution are concerned and in that case there are no whisper of word relating to entitlement of the teachers of the taken over schools. As such the view taken by the Inspector of Schools in the impugned order dated. 26.10.1999 (Annexure-6) may not be a correct view. At this stage Mr. Swain, learned counsel for the applicant submits that at a subsequent stage the Hon’ble Court also decided the issue relating to the applicability of incentive allowance in favour of Green Card holder of the employees of taken over High School and in the said case it has already been decided that employees of taken over Schools will also be entitled to the benefit of incentive allowance as a Green Card holder from the date the schools is taken over by the Government. But learned counsel did not produce a copy of the said order of the Hon’ble Court. Be that as it may, considering the submissions made by the counsel for both the parties and after going through the contents of the O.A. along with its Annexures more particularly the con¬tents of para-2 of the resolution dated. But learned counsel did not produce a copy of the said order of the Hon’ble Court. Be that as it may, considering the submissions made by the counsel for both the parties and after going through the contents of the O.A. along with its Annexures more particularly the con¬tents of para-2 of the resolution dated. 16.12.1994 (Annexure-1), wherein it has been categorically mentioned that “the taken over employees would be treated as Government servants w.e.f. 07.06.1994 only and their service conditions would be as follows :..................” and in clause-3 it has also been categori¬cally mentioned that “all service rules applicable to the Govern¬ment servants shall be applicable to the taken over employees” and as such keeping in view above said clause-2 and 3 of the resolution dated 16.12.1994, for all practical purposes the applicant became a Government servant w.e.f. 7.6.1994 and the ratio of the decision in the case of Purna Chandra Mohanta shall not have any application to the present case in hand. The appli¬cant being a Government Servant w.e.f. 07.06.1994, accordingly he shall be entitled for all service benefit of a Government serv¬ant, which definitely includes his entitlement for incentive allowance extended in favour of the Green Card holders with effect from the date the school, in which the applicant was working, was taken over by the Government i.e. 07.06.1994. In view of the above, the order of the Inspector of School dated 26.10.99 (Annexure-6) is set aside/quashed. The respond¬ents are directed to extend the benefit of incentive allowance applicable to a Green Card holder in favour of the applicant w.e.f. 07.06.1994 and pay all the arrears including current incentive allowance within a period of four months from the date of communication of this order. The O.A. is accordingly disposed of with above observation/direction. O.A. disposed of.