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2018 DIGILAW 639 (ORI)

Basanta Kumar Sahoo v. State of Orissa

2018-07-06

BISWANATH RATH

body2018
JUDGMENT BISWANATH RATH, J. - Filing the writ application, the petitioner has made a prayer for Mandamus to O.P.2 to modify the recommendation made in Annexure-8 thereby permitting the petitioner to be eligible to receive grant-in-aid @ 1/3rd with effect from 1.6.1988 instead of 1.6.1990 and the subsequent salary component @ 2/3rd with effect from 1.6.1990 and full salary cost with effect from 1.6.1992, in the process to modify also the order at Annexure-9 to that effect and further to calculate all arrears for change of such date of eligibilities and release the arrear dues within a stipulated time and further to release the current salary of the petitioner in accordance with Rule- 9 of the Recruitment Rules, 1974. 2. Short background involved in the case is Rajsunakhala College at Rajsunakhala was established in the educational session, 1978-79 having Arts and Commerce streams with approval of the competent authority. Science stream for the Rajsunakhala College was opened in the year 1983. In the meantime, all the streams involving the said College received grantin- aid from the State. Thus the College is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969. The petitioner having secured First Class in the Post Graduate Examination and having been duly selected by the Selection Committee of the College was appointed as a Lecturer in Physics in the O.P.3-College by virtue of an appointment order issued by O.P.3-College on 13.8.1984. The petitioner joined as a Lecturer against the first post of Physics. While the petitioner was continuing as such, he alleged that on account of grudge borne by the Secretary of the Governing Body, he faced a proceeding initiated against him. The petitioner was suspended in the process. Challenging the proceeding, the petitioner finding no ray of hope filed a writ application bearing O.J.C. No.2898/1989. In the meantime, the petitioner was terminated pending decision in the aforesaid writ application. The above numbered writ application thus became infructuous and disposed of as infructuous. In the meantime, the petitioner filed O.J.C. No.1437/1991 challenging the order of his dismissal. This writ application was decided in favour of the petitioner on 22.9.1993 with a direction to reinstate the petitioner in service with all his service benefits. In the meantime, O.P.3-College moved a Civil Review registered as Civil Review No.19/94. In the meantime, the petitioner filed O.J.C. No.1437/1991 challenging the order of his dismissal. This writ application was decided in favour of the petitioner on 22.9.1993 with a direction to reinstate the petitioner in service with all his service benefits. In the meantime, O.P.3-College moved a Civil Review registered as Civil Review No.19/94. This Review application was finally rejected by this Court, vide order at Annexure-3 thereby confirming the judgment of this Court passed in O.J.C. No.1437/91, consequent upon which the petitioner was permitted to join in the post of Lecturer in Physics on 17.2.1997 and the petitioner is continuing as such. The petitioner alleged that in spite of there being a direction of this Court to provide benefit of continuance of service to the petitioner pursuant to this direction in O.J.C. No.1437/91 and the petitioner since entitled to salary component for the first post of Lecturer in Physics with effect from the date such post was due to get grant-in-aid, unfortunately even though such benefit was provided to many of the employees working in the same Institution, the petitioner was debarred from the same. It is also alleged that the petitioner was also not granted salary in terms of Rule-9 of the Recruitment Rules, 1974. The petitioner made a representation. The representation even though filed for consideration has not yielded any result as of now. It is while the matter stood thus, the service of the petitioner was approved with effect from 1.6.1990 and by communications under Annexures-8 & 9 the petitioner instead of being granted at appropriate rate on completion of five years in the post the petitioner was holding, the petitioner was made entitled to the grant-in-aid at a subsequent date. 3. Sri J.K.Rath, learned senior counsel for the petitioner bringing to the notice of this Court a case of a similarly situated person, namely Trilochan Sathua appointed in the post of Lecturer in Mathematics on 18.8.1984 but was granted grant-in-aid from the subsequent date, approached this Court, vide O.J.C. No.15384/1998 for necessary direction to the competent authority to release necessary salary component involving grant-in-aid from 1988, submitted that this Court while allowing the writ application, vide Annexure-10 directed that said Sathua was entitled to 1/3rd grant-in-aid with effect from 1.6.1988, 2/3rd from 1.6.1990 and full salary from 1.6.1992. Pursuant to the direction of this Court in the aforesaid writ petition, said Sathua has been given the benefit in terms of the direction of this Court treating the post Sri Sathua was holding became eligible to grant-in-aid on completion of five years from the date of creation of the post. Sri Rath, learned senior counsel for the petitioner further taking this Court to several decisions both reported and unreported involving Birendra Kumar Mishra vrs. State of Orissa (O.J.C. No.5549/1992 disposed of on 24.9.92, Smt. Bilasini Sahoo vrs. State of Orissa & others (O.J.C. No.2901/1990 disposed of on 7.5.1992 and a reported decision involving Nimain Charan Sahoo vrs. State of Orissa & others reported in 1997(I) OLR-530 contended that the decisions of the competent authority involving Annexures-8 & 9 not only run contrary to the spirit of the statutory provision entitling one to the grant-in-aid but also remain contrary to the repeated decisions of this Court indicated herein above. It is in the above premises, Sri Rath, learned senior counsel for the petitioner prayed this Court for interfering in the impugned orders and issuing suitable directions in favour of the petitioner. 4. Sri G.K.Mishra, learned counsel for the O.P.3-College simply closed his submission while supporting the stand of the petitioner submitted that they have no objection to the claim of the petitioner. 5. 4. Sri G.K.Mishra, learned counsel for the O.P.3-College simply closed his submission while supporting the stand of the petitioner submitted that they have no objection to the claim of the petitioner. 5. Sri K.K.Mishra, learned Additional Government Advocate for O.Ps.1 & 2, on the other hand, going completely away from the stand taken by O.P.1 in its counter affidavit by O.P.1 admitted the petitioner to have joined as Lecturer in Physics in Rajsunakhala College on 13.8.1984 further admitting that the Science stream in the College was opened in 1983 and also admitting that O.P.3-College is an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969 with effect from 1984-85 but however strongly relying on the reply affidavit filed by O.P.2, when O.P.2 even though admitted the date of joining of the petitioner and the date of coming into force of the Science stream in the O.P.3-College but however on the premises that there is a dispute so far as it relates to the joining of the petitioner, particularly for the fact available on record that previous to joining of the petitioner, one Pratibha Panigrahi was continuing in the post of Lecturer in Physics since 17.7.1983, the date of creation of the post and ultimately relinquished her post on 17.9.1989. In the circumstance, Sri K.K.Mishra, learned Additional Government Advocate contended that joining of the petitioner in the post of Lecturer in Physics on 13.8.1984 remains doubtful. Sri Mishra further contended that both the petitioner and O.P.3-College joined hands in suppression of such material facts and it is under the circumstance, Sri Mishra contended that for the petitioner’s joining subsequently, he is not entitled to grant-in-aid upon completion of five years from the date of creation of the post on 17.7.1983. It is in the above premises, Sri Mishra, learned Additional Government Advocate contended that none of the decisions cited at Bar has any application to the case at hand. 6. Before proceeding to consider the rival contentions of the parties and the findings of this Court on merit, this Court first records the undisputed submission of the parties in contest remain that there is no dispute that O.P.3-College was originally brought up in 1978-79 with only having Arts and Commerce stream in Intermediate Post. 6. Before proceeding to consider the rival contentions of the parties and the findings of this Court on merit, this Court first records the undisputed submission of the parties in contest remain that there is no dispute that O.P.3-College was originally brought up in 1978-79 with only having Arts and Commerce stream in Intermediate Post. Science stream in the College was opened in 1983-84 with Mathematics as well as Physics as subject in the education year 1983-84. The College also became an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, 1969 with effect from education year 1983- 84, as clearly admitted by O.P.1 in paragraph-2 of its counter affidavit dated 29.12.2005. Now coming to the disposal of the previous writ application at the instance of the petitioner, vide O.J.C. No.1437/1991, this Court finds, in filing the writ application the petitioner had challenged his disengagement from service by O.P.3- College. This writ application was disposed of allowing thereby in favour of the petitioner by judgment dated 22.9.1993 with the following direction :- “….. In the aforesaid premises, the termination of service of the petitioner is set aside and opposite party no.3 is directed to take back the petitioner in service. The order of reinstatement shall be passed within a period of one month from the date of receipt of this Court’s order. The petitioner shall be entitled to all service benefits which shall be borne by the Governing Body, if it be a case where for the post in question no grant-in-aid was available to the College to which effect an averment has been made in Paragraph 3 of the counter affidavit filed on behalf of Opp. Party Nos.1 & 2.” On filing of a review application by OP.3 challenging the judgment of this Court in the aforesaid writ application, vide Civil Review No.19/1994, the Civil Review was also decided on contest of the parties, vide judgment dated 22.9.1993 as appearing at Annexure-3 with the following direction :- “9. Considering the above facts we are not inclined to accept the allegation of Shri Patnaik that opposite party no.3 filed O.J.C. No.1437 of 1991 suppressing material facts or by furnishing misleading facts. 10. For the reasons stated above, we do not find any merit in any of the points urged by Shri Patnaik in support of the review. Considering the above facts we are not inclined to accept the allegation of Shri Patnaik that opposite party no.3 filed O.J.C. No.1437 of 1991 suppressing material facts or by furnishing misleading facts. 10. For the reasons stated above, we do not find any merit in any of the points urged by Shri Patnaik in support of the review. Accordingly, we dismiss this petition being devoid of merit. 11. Before parting with the case, we may note here that opposite party no.3-Basanta Kumar Sahoo was appointed as a lecturer on 18.8.1987 in Ramamani Mahavidyalaya, Kantabada and has been continuing there since then. We consider it expedient to state that in the event of his joining in Rajsunakhala College pursuant to this judgment, he would not be entitled to any remuneration for the period he remained in service in the aforesaid college at Kantabada. He would only be entitled to the benefit of continuity of service in Rajsunakhala College for the purpose of counting seniority and other service benefits. The Director, Higher Education will also consider the case of the petitioner- Usharani Pradhan for being appointed as lecturer in some other college because of her impending dislodgement following the reinstatement of opposite party no.3- Basanta Kumar Sahoo in Rajsunakhala College.” 7. Reading the judgment in the writ application and the judgment in the Review Application, this Court finds, all through the petitioner is claiming that his initial appointment in the O.P.3- College is as per the appointment order, vide Annexure-1 is 13.8.1984, which fact has not been assailed or disputed by any concern at any point of time. This Court, therefore, observes, it is too late for the O.P.1 to raise any objection with regard to the date of appointment of the petitioner in the O.P.3-College. For the clear direction of this Court in disposal of O.J.C. No.1437/1991 and Civil Review No.19/94 granting the benefit of continuity of service, this Court observes, the question of date of joining of the petitioner is not available to be re-opened any further. Hence, the consideration for extending the grant-in-aid to the petitioner is now required to be seen taking into account the date of creation of the post looking to the statutory requirement concerning the provision for benefit of the grant-in-aid to an employee. Hence, the consideration for extending the grant-in-aid to the petitioner is now required to be seen taking into account the date of creation of the post looking to the statutory requirement concerning the provision for benefit of the grant-in-aid to an employee. Question of grant-in-aid whether from the date of completion of five years or from the date of creation of the post was the subject matter in the writ application already disposed of by this Court also involving the case of one of the coemployees in the same Institution decided by this Court, vide Annexure-10 appended to the writ application. In deciding the proceeding, vide Annexure-10, this Court has already accepted the stand of the State therein that the Rajsunakhala College became an aided educational institution with effect from 1.11.1985 as per Section 3(b) of the Orissa Education Act with clear recording that the entire Institution attained the character of an aided educational institution with effect from 1.11.1985. 8. Now coming to the question of entitlement of grantin- aid to the employees, this Court finds, from the series of judgments produced by the learned senior counsel for the petitioner, this Court has time and again considering the aspect that the Institution has got the character of aided educational institution since 1.11.1985 has repeatedly observed that the period of five years for entitlement of grant-in-aid is to be computed from the date of creation of the post and not from the date of appointment of the individual. In deciding a case involving Smt. Bilasini Sahoo vrs. State of Orissa (O.J.C. No.2901/1990) a Division Bench of this Court on the aegis of the then Chief Justice accepted the contention of Sri Rath, learned senior counsel appearing therein and directed the O.P.1 therein to make available 1/3rd of grant-in-aid attached to the post from 1.6.1988 and consequently directed for releasing of 2/3rd and full salary accordingly. Again deciding the case involving Birendra Kumar Mishra vrs. State Orissa (O.J.C. No.5549/92) and relying on the decision in the case of Bilasini Sahoo, this Court again reiterated the same view. Again deciding the case involving Birendra Kumar Mishra vrs. State Orissa (O.J.C. No.5549/92) and relying on the decision in the case of Bilasini Sahoo, this Court again reiterated the same view. This issue was again involved in another Division Bench proceeding involving Nimain Charan Sahoo arising out of O.J.C. No.2203/1996 reported in 1997(I)OLR 530, this Court in re-affirmation of the view taken in the case of Bilasini Sahoo for the observations therein that the post of Lecturer in English in the particular College being created on 9.12.1985 and since the post is existing uninterruptedly, made the petitioner therein entitled to 1/3rd grant-in-aid, 2/3rd grant-in-aid and full salary on completion of five, seven and nine years respectively from the date of creation of the post. 9. This Court in the above circumstances finds, there remains no dispute with regard to the entitlement of grant-in-aid to 11 the petitioner at appropriate rate on the post existing for five years and has nothing to do with the date of appointment of different individuals. The decision referred to herein above has direct application in the petitioner’s case. This Court, therefore, interfering with the impugned orders at Annexures-8 & 9 directs the O.Ps.1 & 2 to treat the entitlement of the petitioner to 1/3rd grant-in-aid, 2/3rd grant-in-aid and full salary with effect from 1.6.1988, 1.6.1990 and 1.6.1992 respectively by issuing a fresh order of entitlement of grant-in-aid in favour of the petitioner in supersession of the order at Annexures-8 & 9 within a period of one month from the date of this judgment. O.Ps.1 & 2 are directed to compute the arrear entitlement of the petitioner within a further period of one month and release the same with 6% interest per annum in favour of the petitioner within a further period of one month thereafter. The writ application succeeds. No cost. Application succeeds.