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2017 DIGILAW 375 (ORI)

State of Odisha v. Sudhansu Sekhar Rout

2017-04-07

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Article 226 and 227 of the Constitution of India, having been filed by the State of Odisha assailing the order dtd.14.08.2013 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.3124 (C) of 2008 whereby and where under the learned Tribunal, while allowing the original application, has directed to fix the pay of the applicant in Trained Graduate scale of pay from the date of his initial appointment as Classical Teacher on 25.6.1982 notionally till he got promotion to Trained Graduate post on 7.10.2005 and the actual financial benefit along with yearly increment be extended in his favour w.e.f. 07.10.2005 and accordingly disburse the differential amount from 7.10.2005 on wards. 2. The State of Orissa has assailed the said order on the ground that the Tribunal has placed reliance upon the Government Notification dtd.5.9.2011 which contains a condition that the fixation of pay would be granted to such Classical (Sanskrit) Teachers possessing the said common qualification shall be entitled to the scale of pay at par with Trained Graduate Teacher scale of pay, but admittedly on the date when the Notification dtd.5.9.2011 has been issued, the applicant was already under the Trained Graduate scale and as such the very circular is not applicable so far as the case of the applicant is concerned, but the Tribunal, without taking into consideration this aspect of the matter, has allowed the claim of the applicant by directing the authorities to pay the Trained Graduate scale of pay from 25.6.1982 till 07.10.2005 notionally which is not proper and as such the order impugned is not sustainable in the eye of law. 3. While on the other hand, learned counsel representing the opposite party has vehemently opposed the submission of the State of Odisha by submitting that the applicant having been with Acharya Qualification was appointed as Classical Teacher on 25.6.1982 and as such he is entitled to Trained Graduate scale of pay on notional basis from the date of his initial appointed till he got the benefit of Trained Graduate scale of pay w.e.f. 07.10.2005 which is crux of the Government Notification dtd.05.09.2011 and the Tribunal, after taking into consideration this aspect of the matter, has rightly passed the order. He further submits that even the stand taken by the State of Odisha before the Tribunal has supported the case of the applicant, as would be evident from the order impugned and the Tribunal after taking into consideration the stand of the State of Odisha, has passed the order but now the State of Odisha is taking totally ‘U’ turn in challenging the said order which is contrary to the stand taken by them before the Tribunal and as such submission has been made that the order passed by the Tribunal needs no interference. 4. We have heard learned counsels for the parties and perused the documents available on record including the order passed by the Tribunal, impugned in the instant writ petition. The fact which is not in dispute in this case is that the applicant/opposite party herein was initially engaged as Classical Teacher having Acharya qualification on 25.6.1982. He acquired Sikshya Sastiri qualification which is equivalent to B.Ed. degree on 30.07.1982. The applicant while continuing as Classical Teacher, was promoted to Jr. Subordinate Education Service (S.E.S) cadre w.e.f.07.10.2005 and by virtue of that now he is continuing as an Asst. Teacher belonging to Jr. S.E.S. Cadre. The Government has come out with a Notification on 5.9.2011 whereby and where under all the Classical Teachers were given the benefit of Trained Graduate scale of pay from the date of their initial appointment, in case they are having requisite qualification. The applicant/opposite party, on earlier occasion had approached before the Tribunal vide O.A. No.532 of 2008 and the Tribunal, while disposing of the original application vide order dtd.07.5.2008, remitted the matter before the Director, Secondary Education to consider the grievance of the applicant, in pursuance thereto the Director, Secondary Education, vide order dtd.30.04.2008 has rejected the claim of the applicant for B.A., B.Ed. scale of pay from the date of his appointment on the ground that the Government Notification dtd.18.2.2008 is only applicable to Hindi Teachers but not to Classical Teachers. In the meanwhile the Government of Odisha come out with another resolution on 5.9.2011 to the effect that all the Classical Teachers became eligible to get Trained Graduate scale of pay with effect from the date of their appointments, if they had requisite qualifications. The case of the applicant is that he had acquired requisite qualification of Sikshya Sastri as on 30.07.1982 which is equivalent to B.Ed. The case of the applicant is that he had acquired requisite qualification of Sikshya Sastri as on 30.07.1982 which is equivalent to B.Ed. and as such he is entitled to get the benefit in pursuance to the subsequent decision of the Government dtd.5.9.2011. The further grievance of the applicant/opposite party before the Tribunal was that similarly situated Classical Teachers like that of the applicant, who were working under the administrative control of District Education Officer, Phulbani, have got such reliefs vide order dtd.31.7.2012 but such benefit has not been extended in his favour. The applicant/opposite party, being aggrieved, again approached the Tribunal vide O.A. No.3124(C) of 2008 which is subject matter of the instant writ petition and the Tribunal has passed order directing the authorities to fix the pay of the applicant in the Trained Graduate scale of pay from the date of his initial appointment as Classical Teacher, i.e. w.e.f. 25.6.1982 notionally till he got promotion to the Trained Graduate post on 7.10.2005. The State of Odisha, being aggrieved with the said order is before this court by way of this writ petition assailing the order on the ground that the notification dtd.5.9.2011 is not at all applicable, reason being that on the date when the notification dtd.5.9.2011 has been issued, the applicant was already getting the pay scale of Trained Graduate Teacher which he had got w.e.f.7.10.2005. 5. We, after hearing learned counsels for the parties and after going through the order passed by the Tribunal and on critical appreciation of the Notification dtd.5.9.2011, have found that the Government has come out with a decision wherein under clause 8(iii) provision for up-gradation of existing posts of Classical (Sanskrit) Teachers and under clause 8(iv) provision for fixation of pay of Classical (Sanskrit) Teachers has been provided which is being reflected herein below:- “8.Government after careful consideration, have been pleased to decide as follows:- xxxxxxxxxx xxxxxxx xxxxxxxxxx (iii) Up-gradation of the existing posts of Classical (Sanskrit) Teachers:- Consequent upon fixation of revised common qualification as mentioned in para (i), the post of Classical (Sanskrit) Teachers in Government, Fully Aided and Block Grant High Schools upgraded to the status with scale of pay at par with Trained Graduate Teachers vis-à-vis Hindi Teachers of High Schools. (iv) Fixation of pay of Classical (Sanskrit) Teachers :- On fixation of revised common qualification as per para (i), the Classical (Sanskrit) Teachers possessing the said common qualification shall be entitled to the scale of pay at par with Trained Graduate Teachers Scale of pay. The pay of such Classical (Sanskrit) Teachers shall be fixed notionally under Rule-74(b) of the Orissa Service Code. But the pay of Classical (Sanskrit) Teachers who have availed TBA Scale of pay of Rs. 5000-50-8000/- shall be fixed under Rule 74(d) of Orissa Service Code. The quantum of Block Grant of Classical (Sanskrit) Teachers of Block Grant High Schools possessing the revised common qualification shall be determined at par with the Trained Graduate Teachers of same High Schools under Block Grant fold in accordance with GIA Order 2004 with Amendments thereafter from time to time by Government with effect from the date of issue of this Resolution.” It is evident from the decision of the Government that on fixation of revised common qualification as the Classical (Sanskrit) Teachers possessing the said common qualification shall be entitled to the scale of pay at par with Trained Graduate Teachers’ Scale of pay. It is not in dispute that the opposite party was not performing his duty as Classical Teacher having Acharya qualification having been appointed w.e.f. 25.6.1982 and as such the decision of the Government dtd.5.9.2011, so far as it relates to fixation of pay, as has been quoted above, is applicable for the applicant/opposite party. 6. It is not in dispute that the opposite party was not performing his duty as Classical Teacher having Acharya qualification having been appointed w.e.f. 25.6.1982 and as such the decision of the Government dtd.5.9.2011, so far as it relates to fixation of pay, as has been quoted above, is applicable for the applicant/opposite party. 6. The contention raised by the learned counsel representing the State of Odisha that since the applicant had already got the pay scale of Trained Graduate Teacher w.e.f.07.10.2005, as such the notification dtd.5.9.2011, so far as it relates to fixation of pay of Classical (Sanskrit) Teachers, will not be applicable, but the same cannot be accepted by us for the reason that the promotion to the Trained Graduate post has been given w.e.f.7.10.2005 but so far as the claim of the applicant to get the benefit from the date of his initial appointment, he cannot be said not entitle to get the benefit in view of the Government Notification regarding up-gradation of the existing posts of Classical (Sanskrit) Teachers and consequent upon the same the pay scale pertaining to Classical (Sanskrit) Teachers will also be applicable to the applicant since admittedly the applicant has not been granted the benefit of Trained Graduate Teacher from the date of his initial appointment to which he is entitled by virtue of Government Notification, to be fixed notionally under Rule 74(b) of the Orissa Service Code. Moreover, the stand taken by the State of Odisha, the opposite party before the Tribunal admitting the claim of the applicant whereby and where under the specific stand has been taken that since the applicant having Acharya qualification was appointed as Classical Teacher with effect from 25.6.1982, he is entitled to Trained Graduate Scale of Pay on notional basis from the date of his initial appointment till he got the actual benefit of Trained Graduate Scale of pay with effect from 07.10.2005 and as such his pay shall be fixed notionally from 25.6.1982 with all consequential benefits. The Tribunal, after taking into consideration the specific stand taken by the opposite party-State of Odisha, has passed the order and now the State of Odisha is taking totally reverse ground in assailing the order which this court cannot allow, basically for the reason that the ground which has been taken before the Tribunal and on its appreciation the Tribunal has passed an order, the subsequent court will not allow to change the stand, moreover the stand which the State of Orissa is now taking is also not in consonance with the Notification dtd.5.9.2011 rather the stand which has been taken by the State of Orissa before the Tribunal is in consonance with the Notification dtd.5.9.2011. In view thereof, we are of the considered view that the Tribunal has passed a conscious order after taking into consideration the factual aspect as well as the decision of the Government. In view thereof we are not inclined to interfere with the order. In the result the writ petition fails and it is dismissed.