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2016 DIGILAW 76 (ORI)

Narayan Samantray v. State of Orissa

2016-01-28

S.N.PRASAD

body2016
JUDGMENT : S. N. Prasad, J. This writ petition has been filed praying, inter alia, therein (i) writ of mandamus directing the opposite parties nos.3 and 4 to sanction/grant him Headmaster Scale of pay w.e.f. 1.6.1998; (ii) writ of mandamus directing the opposite parties Nos.3 and 4 to calculate and disburse his Provident Fund amount with interest on them; (iii) directing the said opposite parties to pay the differential dues in Headmaster Scale till his retirement. 2. Brief facts of the case is that the petitioner was appointed on 9.9.1969 as Assistant Teacher in Municipal M.E.School, Ankoli in Matric C.T. post by the Berhampur Municipal authorities and ultimately he was given B.Ed. scale of pay w.e.f. 18.8.1970. Petitioner was transferred as Headmaster In-charge to Municipal High School, Ankoli, petitioner after being relieved on 31.5.1998 from Lanjipali High School has joined as Headmaster In-charge of Municipal High School, Ankoli on 1.6.1998 and retired w.e.f. 30.6.1999. Petitioner while was in service has claimed pay scale of the post of Headmaster i.e. pay scale of Rs.1700-3200/- per month w.e.f. 1.6.1998, the date from which he had discharged his duty as Headmaster In-charge but no decision has been taken by the authorities. Petitioner while continuing as Headmaster In-charge, the Executive Officer passed an order on 21.6.1999 promoting him as Headmaster post on ad hoc basis with the scale of pay of Rs.1700-3200/- per month, but the post of Headmaster was never been granted to him while one Sitaram Sahu, Assistant Teacher, Municipal High School, Aska was transferred and posted as Headmaster-in-charge in M.H.S., Ankoli vide order dated 15.12.1992 and joined on 16.12.1992 allowed Headmaster scale w.e.f. 16.12.1992 along with increments, likewise one Raghunath Charan Das and Prakash Chandra Panda had also been allowed pay scale of Headmaster from the date of jointing as In-Charge Headmaster. Grievance of the petitioner is that in spite of repeated representation having been made by him before the authorities no decision has been taken and ultimately he has been superannuated from service, hence having no option he has filed this writ petition. 3. Grievance of the petitioner is that in spite of repeated representation having been made by him before the authorities no decision has been taken and ultimately he has been superannuated from service, hence having no option he has filed this writ petition. 3. Opposite parties 3 and 4 have entered their appearance and filed counter affidavit, inter alia, stating therein that the writ petition is not maintainable as because by virtue of resolution of the State Government issued on 28.2.2004 by which Secondary High Schools of Urban local bodies which was controller by the Municipalities were transferred to the School and Mass Education Department and as such teaching and non-teaching staffs of the schools were declared as Government servants, therefore the petitioner is having alternative forum in the shape of State Administrative Tribunal, hence this writ petition is not maintainable on the ground of availability of alternative forum for redressal of grievance of the petitioner. On merit it has been stated that the petitioner has never been granted regular promotion as Headmaster rather on interim arrangement he was permitted to function as Headmaster in the capacity of in-charge Headmaster and subsequently he has been granted promotion as Headmaster on ad hoc basis but ad hoc promotion has never been approved by the selection committee as required under Rule 426(1) of the Orissa Municipal Rules,1953, hence ad hoc status of promotion as Headmaster has never been confirmed, hence he cannot be entitled for the pay scale of Headmaster being not promoted on substantive post as Headmaster. 4. So far as the contention regarding the case of other similarly situated Headmasters, it has been stated that all those persons have been granted regular promotion by the selection committee way back in the year 1992 and 1993 while the petitioner has been granted promotion on ad hoc basis only in the year 1999 and as such he cannot claim parity with other employees as because they were much more senior in comparison to the petitioner. 5. 5. After having heard learned counsel for the parties and on perusal of the pleadings and the documents on record, grievance which has been raised by the petitioner is regarding pay scale of the post of Headmaster on the ground that initially he was permitted to function as Headmaster in-charge capacity and subsequently he has been granted promotion as Headmaster on ad hoc basis, according to the petitioner his ad hoc promotion has never been confirmed and for that petitioner cannot be held responsible, further case of the petitioner is that since the petitioner has been given promotion as Headmaster although on ad hoc basis which itself suggests that the petitioner has been found to be eligible to be promoted as Headmaster and if the selection committee has not approved his promotion it is not the fault of the petitioner. 6. Learned counsel for the opposite party-State as well as Municipal Corporation has raised preliminary objection regarding maintainability of the writ petition and reliance has been placed in the judgment rendered by the Full Bench of this Court in the case of Smt. Rama Panigrahi vs. State of Orissa and others reported in 2003 (I) OLR 438 and placing reliance upon the said judgment it has been submitted that this writ petition is not maintainable at the first instance before this Court as because there is forum of alternative remedy for redressal of grievance and the petitioner is raising the factual aspect regarding consideration of cases of other similarly situated employees, hence it would be, in the ends of justice to transfer this case before the State Administrative Tribunal for adjudication of the factual aspect as involved in this writ petition. Full Bench of this Court has passed judgment in the case of Smt. Rama Panigrahi vs. State of Orissa and others(supra) wherein after taking into consideration of the constitutional judgment of the Hon’ble Apex Court rendered in the case of L. Chandra Kumar v. Union of India and Ors. reported in JT1997 (3) SC 589 and other orders passed by this Court has been pleased to hold at para-10 which is being reproduced below. reported in JT1997 (3) SC 589 and other orders passed by this Court has been pleased to hold at para-10 which is being reproduced below. “In the light of the conclusion as above, the question referred to us has to be answered by holding that on and from the date a non-Government educational institution becomes a Government school, and the teaching and non-teaching staff acquire the status of Government servants, grievances raised by them come within the purview of the Act and consequently, a proceeding pending in this Court requires to be transferred to the Orissa Administrative Tribunal for decision in terms of Section 29 of the Act. Since what requires to be done as a consequence in this case is to order the transfer of the proceeding to the Orissa Administrative Tribunal, we do not think it necessary to send back the case to the Division Bench for the purpose of passing such a formal order. We, therefore, direct that this proceeding initiated by the petitioner be transferred to the Orissa Administrative Tribunal for decision in accordance with law.”, 7. Here in this case admittedly petitioner was appointed in the school run by Municipality but after resolution of the Government dated 28.2.2004 by which all Secondary High Schools of Urban local bodies which was controlled by the Municipalities were transferred to the School and Mass Education department, as such after 28.2.2004 the service of the petitioner has been given under the control of the School and Mass Education Department and hence the petitioner has become teaching employee of the Government school which is being controlled by the State Government directly. 8. Administrative Tribunal Act,1985 provides provision as contained in Section 5 by which Administrative Tribunal in the State has been constituted to deal with matters specified in that Act. Any dispute relating to service will be within the purview of that Tribunal. 8. Administrative Tribunal Act,1985 provides provision as contained in Section 5 by which Administrative Tribunal in the State has been constituted to deal with matters specified in that Act. Any dispute relating to service will be within the purview of that Tribunal. By virtue of the taken over by the Government petitioner has become government servant w.e.f. 28.2.2004, but learned counsel for the petitioner has argued the case by refuting the argument advanced on behalf of the opposite parties 2 and 3 and has submitted that the writ petition is maintainable under Article 226 of the Constitution of India for the reason that the claim of the petitioner relates back to the year 1999 and when the petition was filed i.e. on 27.1.2003 the School in question was not under the control of the State Government and as such petitioner cannot be asked to avail remedy of State Administrative Tribunal. 9. From perusal of the judgment rendered by this Court in the case of Smt. Rama Panigrahi vs. State of Orissa and others(supra) similar issue fell for consideration since Division Bench of this Court in the case of Nalini Prava Dash v. State of Orissa and others reported in 2000 (I) OLR 447 , the ratio laid down by this Court that the contention of the petitioner in that case that since claim related to prior to the petitioner acquired status of Government servant, petitioner was entitled to ventilate her grievance before the High Court in the pending writ petition, cannot be accepted since her claim included for grant-in-aid from Government. The Court took view that since the petitioner therein had become government servant, she had to seek her remedy before the Orissa Administrative Tribunal. While on the other hand, another judgment rendered by Division Bench of this Court in the case of Gokulananda Panda vs. State of Orissa and Others reported in 2000 (II) OLR 210 took view that since claim related to status of the Government in a non-Government aided School and taken over of the school by Government subsequently affected his status, question can and ought to be decided by this Court in the pending writ petition. Due to two divergent views of Division Bench of this Court, the matter has been referred before the Larger Bench and the Full Bench of this Court rendered judgment in the case of Smt. Rama Panigrahi vs. State of Orissa and others(supra) whereby and whereunder this Court has endorsed the view of the Division Bench rendered by this Court in the case of Nalini Prava Dash v. State of Orissa and others(supra) by holding therein that on and from the date of non-Government educational institution becomes Government School and teaching and non-teaching staff acquired status of Government servants, grievance raised by them come within the purview of the Act and subsequent proceeding pending in this Court requires to be transferred to the Orissa Administrative Tribunal in terms of section 29 of the Act. This Court in the case of Smt. Rama Panigrahi vs. State of Orissa and others(supra) has endorsed view of the Division Bench rendered in the case of Nalini Prava Dash v. State of Orissa and others(supra) by taking into consideration the judgment pronounced in the case of L. Chandra Kumar v. Union of India and Ors. reported in JT1997 (3) SC 589 and Kendriya Vidyalaya Sangathan and Anr. vs. Subash Sharma etc. reported in JT 2002 (2) SC 568. 10. In view of the ratio laid down by the Full Bench of this Court, contention raised by the petitioner is hereby rejected and since the school in question has acquired status of Government school w.e.f. 28.2.2004 and as such applying the ratio of the judgment rendered by this Court in the case of Smt. Rama Panigrahi vs State of Orissa and others(supra) this proceeding (writ petition) instituted by the petitioner be transferred to the Orissa Administrative Tribunal, Cuttack for adjudication. In view of the above, the writ petition is disposed of.