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Orissa High Court · body

2014 DIGILAW 804 (ORI)

Subash Chandra Nayak v. State of Orissa

2014-11-27

B.R.SARANGI

body2014
Judgment Dr. B.R.Sarangi, J. The petitioner, who was appointed against 3rd post of Lecturer in History (Management Payment) in the Rairangpur College, Rairangpur on 19.11.1983 has filed this application seeking direction to the opposite parties to pay all his outstanding arrear salary along with interest thereon @12% per annum taking into account the basic scale of pay of the said post as Rs.2000-3500/- from the date of his joining in the said College besides direction to the opposite parties to pay his incremental pay for the period he rendered service in the said college. 2. The factual matrix of the case in hand is that the Rairangpur College, Rairangpur was an aided college within the meaning of Section 3 (b) of the Orissa Education Act. The third post of Lecturer in History in the said college was created on 19.11.1983. The said post was eligible to receive 1/3rd grant in aid w.e.f. 19.11.1988 and 2/3rd grant in aid from 19.11.1990 on completion of five and seven years of creation of the said post respectively. Pursuant to an advertisement issued by the Service Selection Board, the petitioner having requisite qualification applied for the post of Lecturer in History and he having satisfied the eligibility criteria specified in clause-4 of the advertisement was called to attend the interview. He was selected by the Selection Board for the appointment in the said post. Thereafter, his name was recommended by the Selection Board to the Director Higher Education, Orissa in compliance with the provisions contained in sub-rule 5 (2) of Orissa Education (Recruitment and Conditions of Service of the Teachers and Members of the Staff of aided Educational Institutions) Rules, 1974. Accordingly, the petitioner was appointed against 3rd post of Lecturer in History (Management Payment) in the Rairangpur College, Rairangpur in the scale of pay of Rs.1350-2875/- with usual D.A. as admissible from time to time vide office order dated 4.5.1990, Annexure-2. Then the Governing Body of the College communicated to the petitioner vide order dated 11.5.1990, Annexure-3 that instead of paying his salary as per the scale of pay Rs.1350-2875/- admissible to the said post pursuant to the appointment letter issued by the Director vide Annexure-2, a consolidated amount of Rs.600/- was to be paid to him. Then the Governing Body of the College communicated to the petitioner vide order dated 11.5.1990, Annexure-3 that instead of paying his salary as per the scale of pay Rs.1350-2875/- admissible to the said post pursuant to the appointment letter issued by the Director vide Annexure-2, a consolidated amount of Rs.600/- was to be paid to him. Therefore, the petitioner requested the Secretary of the Governing Body to pay him salary in the scale of pay of the said post as directed by the Director. It is stated that the services of the petitioner were approved on regular basis by the Director as per the provisions contained under sub-rules (3) and (4) of Rule 5 of the aforesaid 1974 Rules in the scale of pay of Rs.1350-2975/- w.e.f. 11.5.1990 the date when he joined the post. After rendering more than one and half years of service in the said college, the petitioner was transferred to S.N. College, Rajkanika, vide order dated 28.11.1991 of the Director Higher Education Orissa enabling him to join his new place of posting. Due to revision of pay scales, the petitioners’ scale of pay Rs.1350-1975/- was revised to Rs.2000-3500/- pursuant to Revised Scale of Pay Rule 1989 given effect from 1.5.1989 which was also reflected in the service book of the petitioner. 3. It is stated that the petitioner having joined in Rairangpur College, Rairangpur on 11.5.1990, he was entitled to draw the salary in the scale of pay Rs.2000-3500/- instead of Rs.1350-2975/- in terms of his order of appointment issued by the Director. But instead he has paid a consolidated salary of Rs.600/- per month in Rairangpur College and even though protested against that, the same went unheeded. Hence, this application. 4. Mr. K.K. Rout, learned counsel for the petitioner, strenuously urged that the petitioner having been appointed pursuant to regular selection made by the Service Selection Board and recommendation of the Board to the Director and he having been issued the appointment letter in the scale of pay Rs.1350-2975/-, under no circumstances the Governing Body could have paid him less salary than that indicated in the order of appointment. The scale of pay of Rs.1350-2975/- having been revised w.e.f. 1.5.1989, he was entitled to get revised scale of pay Rs.2000-3500/- from the said date as he had joined the Rairangpur College, Rairangpur on 11.5.1990. The scale of pay of Rs.1350-2975/- having been revised w.e.f. 1.5.1989, he was entitled to get revised scale of pay Rs.2000-3500/- from the said date as he had joined the Rairangpur College, Rairangpur on 11.5.1990. He further submitted that excluding the amount paid to him at the rate Rs.600/- per month, he is entitled to get the balance amount along with interest at the rate of 12% per annum. To substantiate the aforesaid contention, learned counsel for the petitioner relied upon the judgment of this Court in Banamali Behera v. State of Orissa and others, 1997 (I) OLR 555, Smt. Bandita Dash v. The State of Orissa and others, 76 (1993) CLT 942 and Smt. Kamala Behera v. State of Orissa represented through its Secretary of Education and Youth Services Department, Govt. of Orissa, State Secretariat, Bhubaneswar and two others, 76 (1993) CLT 1035. 5. Mr. S. Das, learned Addl. Standing Counsel for the State, strenuously urged that the State authority is not liable to pay any amount as claimed by the petitioner. The petitioner having been selected by the Service Selection Board and sponsored to the State Government by opposite party no.3 and the scale of pay of the petitioner has been indicated as to Rs.1350-2975/-, opposite party no.3 was bound by the order of appointment and was required to pay such amount and that was not States’ liability. Rather it is the Governing Body which was bound to pay the salary as per the appointment order and subsequently in the scale of pay as revised. By this way, whatever amount had already been paid to the petitioner by the Governing Body, deducting the same, balance amount ought to have been paid in terms of the recommendation for appointment of the petitioner and the communication by the State. 6. Mr. S.K. Pattnaik, on behalf of Mr. P.K. Pattnaik, learned counsel appearing for opposite party no.3 submitted that the Governing Body of Rairangpur College is not liable to pay the amount demanded by the petitioner. 6. Mr. S.K. Pattnaik, on behalf of Mr. P.K. Pattnaik, learned counsel appearing for opposite party no.3 submitted that the Governing Body of Rairangpur College is not liable to pay the amount demanded by the petitioner. He urged that the petitioner having accepted the consolidated amount of Rs.600/- per month paid by the Governing Body, later he cannot claim that he was entitled to get his salary in the scale of pay admissible to the post in terms of the recognition accorded by the Director to the College i.e. in the scale of pay Rs.1350-2975/- and consequent revision of his pay as Rs.2000-3500/- given effect from 1.5.1989. It is submitted that the claim of the petitioner being grossly barred by limitation, the same cannot be allowed now. He further stated that the petitioner has made a money claim in shape of arrear salary and after expiry of 3 years he is not entitled to get any amount. Therefore, the claim of the petitioner is not admissible. He added that the college in question became eligible to receive full grant-in-aid of Government as it is situated in a backward area and the principle of 3 years, 5 years and 7 years was applicable. Therefore, the post having been created on 2.11.1983, grant-in-aid was payable at 1/3rd rate from 1.4.1986, 2/3rd from 1.4.1988 and full grant-in-aid from 1.4.1990. On submission of joining report on 11.5.1990, it was intimated to him by the Governing Body that he would be paid salary as laid down by the Governing Body of the college and therefore once he accepted the same and acted upon the same, cannot be challenged nor can the benefit claimed by him be granted to the petitioner by opposite party no.3. To substantiate his contention, Mr. Pattnaik, relied upon the judgment of the apex Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648 . 7. After considering the contention raised by learned counsel for the parties and going through the records, it appears admittedly following due procedure by the selection committee of the Selection Board the petitioner was appointed as a Lecturer against 3rd post in History in Rairangpur College, Rairangpur in the scale of pay of Rs.1350-2975/- which later on revised as Rs.2000-3500/- pursuant to Revised Pay Rules, 1989 given effect from 1.5.1989. The petitioners’ name having been recommended by the Director, Higher Education for his appointment in the scale of pay of Rs.1350-2975/-, the Governing Body could not have paid him a consolidated salary of Rs.600/- per month. The petitioner also raised objection to such payment by the Governing Body as he was a sponsored candidate of the Selection Board. Therefore, he is entitled to get entire amount as per the scale of pay admissible to the post but his objection has not been given fell in the deaf ears of the Governing Body. After continuing in the said college for one and half years, the petitioner was transferred to S.N. College, Rajkanika and his appointment being duly approved by the competent authority w.e.f. 11.5.1990. Therefore, it was the responsibility of opposite party no.3 to pay differential salary admissible to the post of the petitioner in terms of his appointment letter which was duly endorsed in the counter affidavit filed by opposite party nos. 1 and 2. After being transferred and joining at S.N. College, Rajkanika the petitioner was paid salary in regular scale of pay since 4.12.1991. 8. Similar matter came up for consideration before this Court in Smt. Bandita Dash case (supra) wherein this Court taking into account the approval order issued by the authority and the promise held out in the Grant-in-Aid order for the post came to a conclusion that the petitioner in that case was entitled to get differential pay admissible to the post of Lecturer in Poltical Science and such differential pay was to be calculated by the Government in accordance with rules after taking into consideration the Resolution No.37376-PCC-23/89-F dated 3.10.1989 and accordingly directed the opposite parties to pay differential pay with increment to which the petitioner was entitled within a period of four months from the date of receipt of the order. But so far as reliance placed on the decision in the case of Banamali Behera and Smt. Kamala Behera (supra), the same had been decided on different context all together, inasmuch as the benefit of scale of pay to Lecturer and staff of an aided educational institution is applicable to the counterpart in Government Colleges in view of Rule 9-A of 1974 Rules. Therefore, that decision is of no help case to the present context. Therefore, that decision is of no help case to the present context. The contention raised by learned counsel for opposite party no.3 that the relief claimed at a belated stage cannot be granted to the petitioner on ground of delay and latches on ground of limitation and if at all it is granted then the arrear can be paid to the petitioner normally for a period of three years prior to the date of filing of the application. Reliance placed by him on the judgment in Union of India and others (supra) losing sight of the facts o the said judgment. In paragraph-7 the apex Court held as follows:- “To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception ………………..” Therefore, the petitioners’ case stands as exceptional to the exception for which, he cannot be denied the benefit claimed by him in the present writ application. 9. Taking into consideration the ratio decided in Bandita Dash and Union of India and others cases (supra), this Court is of the considered view that the petitioner is entitled to get the differential salary for the period from 11.5.1990 to 3.12.1991 in the scale of pay of Rs.1350-2975/- and in consequential revision thereof to Rs.2000-3500/- along with increment besides interest at the rate of 10% per annum. The entire calculation be made by opposite party nos. 1 and 2 and the differential amount be paid to the petitioner within a period of four months from the date of receipt of this order. 10. With the above observation and direction, the writ application stands disposed of. However, there shall be no order as to costs.