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2016 DIGILAW 563 (ORI)

Rabinarayan Dash v. State of Orissa

2016-07-27

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. By this application under Article 226 of the Constitution of India, the petitioner has prayed, inter alia, for a direction to the opposite parties to accord pay protection following his transfer to Nampo High School, Nampo in the district of Balasore. 2. Bereft of unnecessary details, the short facts of the case of the petitioner are that Gandhinagar Uccha Bidyapitha, Salangipada in the district of Kalahandi is an aided educational institution within the meaning and ambit of the Orissa Education Act, 1969 and Rules framed thereunder. The petitioner was appointed as a Trained Graduate Teacher in the said school. His service was approved by the educational authorities. Since his place of service is 600 kms. from his village Chadheya, he made a representation to the Director, Secondary Education, Orissa, opposite party no.2, to transfer him from Gandhinagar Uchha Bidyapitha to any other aided educational institution in the district of Bhadrak/Balasore. By office letter No.30962 dated 15.9.1990, he was transferred to Nampo High School, Nampo in the district of Balasore, vide Annexure-1. Opposite party no.2 directed to adjust the petitioner against the vacant trained graduate post as a fresh candidate as per the undertaking given by him and his seniority in the previous school will not be taken into account. But then, his past services shall be taken into account for the pensionary benefits. Pursuant to the order of transfer, he joined as a Trained Graduate Teacher in Nampo High School on 20.11.1990 and discharged his duties to the utmost satisfaction of the authority concerned. After transfer, no pay protection was given to him. He was paid at the initial scale of pay of Trained Graduate Teacher. He filed a representation on 10.11.1994 to the Inspectors of Schools, opposite party no.3, to give him pay protection, vide Annexure-4. Though the Headmaster of the School submitted the records before opposite party no.3 on 6.11.1996, vide Annexure-7, but no action has been taken till yet. With this factual scenario, this writ petition has been filed. 3. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties. The sum and substance of the case of the opposite parties is that the petitioner was adjusted in Nampo High School with effect from 20.11.1990 vide letter no.222 dated 5.1.1991. With this factual scenario, this writ petition has been filed. 3. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties. The sum and substance of the case of the opposite parties is that the petitioner was adjusted in Nampo High School with effect from 20.11.1990 vide letter no.222 dated 5.1.1991. While adjusting him in Balasore district, certain conditions were imposed that he will forgo his past services and seniority and his appointment will be treated as a fresh one. He will draw the salary in the initial scale of pay. But his past services shall be taken into account towards pensionary benefits. Further, the Government of Orissa in the Department of School and Mass Education vide order No.28089 dated 23.9.1993 issued instruction to allow pay protection to the employees of non-Govt. High School in case of transfer. When the petitioner was transferred and adjusted, there was no instruction with regard to pay protection of the employees of Non-Government High School. The order of the Government is perspective. In OJC No.17201 of 1997 filed by one Harihar Tripathy, this Court directed the Director of Secondary Education, Orissa, opposite party no.2, to consider the claim of the petitioner therein regarding protection of the scale of pay. The matter is pending before the opposite party no.2. Unless and until instruction is received from opposite party no.2 to give pay protection to the petitioner, it is not possible on the part of the opposite party no.3 to take a decision in the matter. 4. Heard Mr. T. Pradhan, learned counsel for the petitioner and Mr.M. Bisoi, learned Standing Counsel for the School & Mass Education Department. 5. Learned counsel for the petitioner submitted that in the case of Binaya Kumar Dhar v. State of Orissa (OJC No.3260 of 1995 disposed of on 8.5.1996), a Division Bench of this Court directed the Inspector of Schools to calculate the arrears of the petitioner and pay the same. The petitioner is similarly circumstanced to that of Binaya Kumar Dhar. 6. In Binaya Kumar Dhar, on being selected by Managing Committee of Akhandalmai High School, Aradi, the petitioner joined in the school as Classical Teacher on 8.4.1993. The school in question is an aided educational institution. The petitioner is similarly circumstanced to that of Binaya Kumar Dhar. 6. In Binaya Kumar Dhar, on being selected by Managing Committee of Akhandalmai High School, Aradi, the petitioner joined in the school as Classical Teacher on 8.4.1993. The school in question is an aided educational institution. While serving as such, he made a representation to the Director, Secondary Education, Orissa for his transfer to Sidheswar High School, Amarda Road on the plea that Amarda Road is nearer to his native village. On consideration of the representation, the Director in his office order No.10837 dated 27.2.1993 passed the following order. “The services of Sri Binoy Kumar Dhar, Classical Teacher of Akhandalamani High School under the Inspector of Schools, Bhadrak Circle is hereby placed at the disposal of the Inspector of Schools, Balasore Circle for his adjustment in Sidheswar High School, Amarda Road for his adjustment against a retired vacancy of Classical teacher of Sidheswar High School, Amarda Road under the Inspector of Schools, Balasore Circle, Balasore as a new entrant as per undertaking given by him. Before giving him appointment to the above teacher, the concerned management may be requested to obtain an undertaking from Sri Dhar to the effect that he will forgo his past services and seniority and will draw his salary at the initial of the scale on the event of his adjustment in their school. His past services is only to be counted towards pensionary benefits.” The petitioner thereafter gave an undertaking in writing to the effect that he will forgo his past services and seniority and will draw his salary at the initial scale of pay in the event of his adjustment in Sidheswar High School, Amarda Road. After obtaining undertaking, the Headmaster-cum-Secretary, Sidheswar High School, Amarda Road by office order dated 22.3.1993 appointed the petitioner as Classical Teacher in Sidheswar High School, Amarda Road against the vacant post in the initial basic pay. Pursuant to the said order of appointment, the petitioner joined the school at Amarda Road as Classical teacher on 8.4.1993. Case of the petitioner was that at Akhandalamani High School, his basic pay was Rs.1520/-and in no circumstances, it could be reduced to Rs.1400/-on his joining in the new school. Pursuant to the said order of appointment, the petitioner joined the school at Amarda Road as Classical teacher on 8.4.1993. Case of the petitioner was that at Akhandalamani High School, his basic pay was Rs.1520/-and in no circumstances, it could be reduced to Rs.1400/-on his joining in the new school. It was pleaded by the petitioner that the State Government in its order No.28089 dated 23.9.1993 had decided to accord pay protection to Assistant Teachers of Non-Government Aided High Schools transferred either on mutual basis or against vacant posts and on that basis he should be given pay protection. In the counter affidavit, a stand was taken by the opposite parties that the petitioner agreed to forego his past services and seniority by giving the undertaking with regard to Government order No.28089 dated 23.9.1993. It was stated that the benefits under the said order could not be extended to the petitioner as he was adjusted prior to issue of the said order. A Division Bench of this Court held thus: “3. The question whether an unfair and unreasonable contract or an unfair or unreasonable clause in a contract entered into between the parties who are not equal in bargaining power can be enforced came up for consideration before the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 . In paragraph-90 of the judgment, the Court observed as follows: “……..This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instant……….It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. For instant……….It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be…….. The court must judge each case on its own facts and circumstances.” 4. One of the questions which came up for decision before this Court in Bidyadhar Bhuyan v. State of Orissa, 1996 (II) OLR 655 was with regard to the impact of options given by teachers of non-Government Aided High Schools that on taking over the management of such schools by the Government, they would be treated as Government servants and their age of superannuation would be 58 years of age. Relying on the ratio of the Supreme Court in Brojo Nath Ganguly (supra), Hon’ble Mr. Justice Susant Chatterji (as he then was) on behalf of the Bench observed in paragraph 52 of the judgment that “on one side there is strong State Government and on the other side there are poor, humble and helpless teachers and employees of the private schools. On the face of the Government decision to take over the management, they set down their option having no power of bargaining or power to counter the situation. They might give option to the take-over but they cannot be victimized to sacrifice their beneficial clause under a prescribed set down standard option form to bind them. The Court certainly has its power of judicial review to go into various dimensions of this problem and to see whether the signing of the option form will preclude the employees to raise their voice against the illegal, irrational and unfair acts and call upon them to sacrifice two valuable years of their service tenure”. The Court certainly has its power of judicial review to go into various dimensions of this problem and to see whether the signing of the option form will preclude the employees to raise their voice against the illegal, irrational and unfair acts and call upon them to sacrifice two valuable years of their service tenure”. Describing the option given by the teachers as arbitrary, the Court struck down the offending clause of the government resolution as bad in law. 5. Keeping the aforesaid observations of the Supreme Court as well as this Court, we may now proceed to examine the circumstances in which the petitioner gave the undertaking. As already noted, the petitioner wanted transfer to a place nearer to his native village and when he found the post of Classical teacher in Sidheswar High School, Amarda Road was lying vacant following the retirement of a teacher, he made representation to the Director praying for his transfer from Akhandalamani High School, Aradi. On consideration of the representation, the Director, in fact, posted the petitioner at Sidheswar High School, Amarda road as per the order dated 27.2.1993 (Annexure-1). When the Director insisted that the petitioner had to give undertaking to give up past services, seniority and to draw his salary at the initial of the scale, the petitioner had no other choice than to give the undertaking because he himself wanted to be transferred to a place nearer to his native village. The Director being the higher authority was definitely in a dominating position to extract the written undertaking from the petitioner who being in a distress situation in his anxiety to go nearer to his village had given the undertaking. The Director being the higher authority was definitely in a dominating position to extract the written undertaking from the petitioner who being in a distress situation in his anxiety to go nearer to his village had given the undertaking. The posting of the petitioner at Sidheswar High School, Amarda Road might have affected seniority of teachers in that school and for that, insistence by the Director to the petitioner to forego his past services and seniority might be justified but the further condition that the petitioner was to draw salary at the initial scale of pay is wholly unreasonable, arbitrary and whimsical for the simple reason that protection of his pay did not in any way affect any teacher at Sidheswar High School, Amarda Road.” On taking a holistic view of the matter, this Court allowed the writ application and directed the Inspector of Schools to calculate the arrears of the petitioner and pay the same within six months from the date of receipt of the order. The ratio of the said case applies with full force to the facts and circumstances of the case. 7. In view of the foregoing discussion, the writ application is allowed. Opposite party no.3 is directed to calculate the arrears of the petitioner and pay the same within a period of six months from the date of receipt of the order. The past services of the petitioner shall be reckoned towards his leave and retiral benefits. No order as to costs.