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2017 DIGILAW 855 (ORI)

Bimbadhar Lenka v. State of Orissa

2017-08-09

B.R.SARANGI

body2017
JUDGMENT : DR. B.R. SARANGI, J. 1. The petitioner, by means of this writ application, seeks direction to the opposite parties to grant him benefit of Time Bound Advancement (TBA) from 04.09.1998 and Assured Career Programmer (ACP) from 04.09.2008 and pay him the differential arrear amount on such re-fixation of pay within a stipulated period. 2. The factual matrix of the case, in a nutshell, is that “Sradhamani U.N. High School” situated at Mukhura in the district of Balasore is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act. As such, the provisions of the Orissa Education Act and the Rules framed thereunder are applicable to it and its employees. The managing committee of the school, by letter no.103 dated 01.09.1983, appointed the petitioner as PET, having I.A.C.P.Ed. qualification. Pursuant thereto, the petitioner joined the post on 04.09.1983. But his services were however approved by the authority and he was paid grant-in-aid in the Matric C.P.Ed. scale from 01.06.1994, the date from which the school came over to the grant-in-aid fold. As the petitioner was not paid I.A.C.P.Ed. scale, he approached this Court by filing W.P.(C) No.1539 of 2006, which was disposed of by this Court by order dated 07.02.2006 directing the authority to pay I.A.C.P.Ed. scale to the petitioner taking into consideration the judgment rendered by this Court in Shri Niranjan Nayak v. State of Orissa, 2003 (2) OLR 321 . Consequentially, the Director of Secondary Education, Orissa, by its letter dated 04.05.2017, approved the appointment of the petitioner and sanctioned the I.A.C.P.Ed. scale of pay to him from 01.06.1994. As per the Orissa Pay Revision Rules issued from time to time, an employee continuing in one grade/post after completion of 15 years of qualifying service in the same cadre is entitled to get the benefit of Time Bound Advancement, which has been subsequently renamed as Assured Career Progression (ACP). Since the petitioner was appointed on 01.09.1983 and joined on 04.09.1983, on completion of 15 years of qualifying service, he was entitled to get the benefit of TBA from 04.09.1998. Thereafter, on completion of 10 years of qualifying service was entitled to get the benefit of ACP. Since the petitioner was appointed on 01.09.1983 and joined on 04.09.1983, on completion of 15 years of qualifying service, he was entitled to get the benefit of TBA from 04.09.1998. Thereafter, on completion of 10 years of qualifying service was entitled to get the benefit of ACP. But under the wrong premises the authorities, instead of granting the benefit of TBA from 04.09.1998, have granted ACP from 01.06.2009 by office order dated 15.02.2010 in annexure-4 computing the same from the date, when the school came over to grant-in-aid fold, i.e., 01.06.1994. 3. Mr. S.K. Das, learned counsel for the petitioner contends that the computation made for granting the benefit of TBA, keeping in view that the petitioner is eligible to get the same from the date of receipt of grant-in-aid, i.e., 01.06.1994, is contrary to the provisions of law. As such, the initial appointment of the petitioner being 04.09.1983, he is entitled to get TBA on completion of 15 years thereafter, i.e., from 04.09.1998 and ACP on completion of ten years thereafter, i.e., from 04.09.2008. To substantiate his contention, he has placed reliance on the judgment of this Court reported in Karunakar Biswal v. State of Orissa, 82 (1996) CLT 666. 4. Mr. A.K. Pandey, learned Standing Counsel for School and Mass Education Department, on the other hand, states that as per resolution dated 13.04.2009 of the Government of Odisha in the Department of Schools & Mass Education the similarly situated employees like the petitioner are entitled to get 1st ACP on completion of 15 years, 2nd ACP on completion of 25 years and 3rd ACP on completion of 30 years, provided they continue in one post/grade. Although by that time the petitioner had got requisite qualification of I.A.C.P.Ed., since the school in question came into grant-in-aid fold on 01.06.1994, on completion of 15 years from receiving the stgrant-in-aid the petitioner has been paid the ACP on completion of 15 years, i.e., on 01.06.2009. Therefore, the claim of the petitioner cannot sustain in the eye of law. 5. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. The undisputed fact being that the petitioner was appointed on 01.09.1983 pursuant to which he joined on 04.09.1983. 6. The undisputed fact being that the petitioner was appointed on 01.09.1983 pursuant to which he joined on 04.09.1983. Although the petitioner was having I.A.C.P.Ed. qualification at the time of his joining, he was granted Matric C.P.Ed. scale of pay with effect from 01.06.1994, while bringing him into the fold of grant-in-aid. Therefore, he approached this Court by filing WP(C) No. 1539 of 2006, which was disposed of by order dated 07.02.2006 directing the opposite parties to grant I.A.C.P.Ed. scale of pay. Consequentially, taking into consideration the judgment of this Court in Niranjan Nayak (supra) the petitioner has been paid I.A.C.P.Ed. scale of pay with effect from 01.06.1994. But the fact remains, the petitioner, having joined on 04.09.1983, is entitled to get TBA with effect from 04.09.1998, but instead he has been paid 1st ACP after completion of 15 years on 01.06.2009 computing the same from the date he received grant-in-aid, i.e., 01.06.1994. 7. In the communication dated 22.07.1989 in Annexure-5 made by the Government of Orissa in Education &Youth Services Department in the context of principles relating to fixation of pay in time bound advancement pay scale, it has been clearly stipulated as follows: “The fifteen years of service for this purpose shall be computed taking into account the period of service in officiating, temporary or substantive capacity in the particular post/ grade for which the advancement scale of pay has been prescribed. Where the period of service rounded in such a post/grade has been broken into two or more spells all such spells of service shall be taken into account for computation the total period if the break has been condoned for the purpose of increment in the ordinary scale of pay of the post/grade. Pay of the eligible employee on coming over to his advancement scale of pay shall be fixed under Rule 74(B) of Orissa Service Code. The next increment of the employee who has come over to the advancement scale of pay shall be granted on the anniversary of last increment in the scale of pay from which he has come over to the advancement scale of pay. The next increment of the employee who has come over to the advancement scale of pay shall be granted on the anniversary of last increment in the scale of pay from which he has come over to the advancement scale of pay. This has been concurred in by the Finance Department vide their O.J.R. No. 739 C.S.I. Immediate steps may please be taken for provision of funds under Non-plan/plan as the case may be in the supplementary statement of expenditure 1989-90 keeping in view the actual requirement.” In view of such position, the petitioner is obviously entitled to get the benefit of TBA on completion of 15 years of service from the date of his initial appointment, i.e., 04.09.1983. This issue now no more remains res integra, in view of the fact that a similar question had come up for consideration in Karunakara Biswal (supra) and this Court came to hold in paragraph 4 of the judgment as follows: “4. The question as to from which date “15 years of continuous service” has to be reckoned came up for consideration before this Court in Bata Krishna Sahu v. State of Orissa, (O.J.C. No. 115 of 1992 disposed of on 5.5.1994. In that case, a Hindi teacher was denied the benefit of advancement pay scale on the ground that he was allowed higher scale of pay as a result of his passing B.A. Examination and the 15 years of continuous service was to be counted from the day he drew higher scale of pay and not from any prior date. Chief Justice Nanavati (as he then was) speaking for the Bench observed as follows: “XX XX XX There is nothing on record to show that as a result of the petitioner acquiring higher qualification, namely, the degree of B.A., he became entitled to a higher grade or that his post was regarded as a higher post. It is therefore, difficult to appreciate how the period of 15 years is to be counted not from the date of appointment as a Hindi teacher but from the date he was given same benefit as a result of his passing B.A. examination. It is therefore, difficult to appreciate how the period of 15 years is to be counted not from the date of appointment as a Hindi teacher but from the date he was given same benefit as a result of his passing B.A. examination. The petitioner having completed 15 years of service in the same grade or post prior to 1-1-1985, he became entitled to the benefit of advancement of pay scale.” The ratio of Bata Krishna Sahu (supra) was followed in Sanatan Barik v. State of Orissa and other connected cases, (O.J.C. No. 124 of 1992 and O.J.C. Nos. 118, 124, 125, 129, 130, 140 and 141 of 1992) disposed of on 2-5-1995.” 8. In view of the above settled position of law, this Court is of the considered view that the petitioner is entitled to get the benefit of TBA on completion of 15 years from the date of his initial appointment, i.e., 04.09.1983 and consequentially he is entitled to get 2nd and 3rd ACP on completion of 25 years and 30 years respectively. In such view of the matter, the opposite parties are directed to make the computation in the light of the observation made above and extend such benefits to the petitioner as expeditiously as possible, preferably within a period of four months from the date of receipt of this judgment. 9. In the result, the writ petition is allowed. No order as to cost.