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2020 DIGILAW 7 (ORI)

Bharati Das v. State of Odisha

2020-01-03

B.R.SARANGI

body2020
JUDGMENT : B.R. Sarangi, J. The petitioner, who was initially appointed as a teacher and now designated as Special Educator, by way of this application, seeks direction to opposite party no. 1 to grant regular pay scale w.e.f. 24.02.1994, as per the Government resolution dated 24.02.1994 in Annexure-2, by quashing the decision of opposite party no.1 dated 04.10.2008 in Annexure-8 allowing regular pay scale with effect from 01.07.2008. 2. The factual matrix of the case, in hand, is that “School for Mentally Retarded, Balasore” was established in the year 1982 by the Handicapped Welfare Institute, a society registered under the Societies Registration Act, 1860. The petitioner was initially appointed as a teacher and subsequently designated as special educator from 07.12.1984 by the erstwhile management of the school for mentally retarded with a consolidated salary of Rs. 500/- per month. The school in question was recognized by opposite party no. 1 and has been receiving the grant-inaid from the Government since 1986-89. Consequentially, vide resolution dated 31.12.1985, the State Government formulated a set of rules for the institutions imparting education to blind, deaf and mentally retarded children. But the said rule did not have any provision for recruitment of teachers or their scale of pay. The State Government, vide resolution dated 28.12.1987, amended 1985 Rules incorporating provisions for engagement and salaries of teaches, but the same was not implemented. 2.1 Consequentially, vide resolution dated 24.02.1994 in Annexure-2, the State Government formulated a separate set of rules laying down the norms for fixation of yardsticks for teaching and non-teaching staff of the schools for mentally retarded children. As per the said rules, a special educator was entitled to a scale of pay of Rs. 1400-2600/-. As the scale of pay prescribed for special educators was not allowed to the staff of the school, the petitioner filed OJC No. 2310 of 1996 with a prayer to allow her the prescribed scale of pay w.e.f. 01.04.1994. Two other special educators of the school also filed similar writ petitions. This Court, vide order dated 18.08.1999, disposed of the three writ petitions directing the opposite party no. 1-State Government to consider the proposal of the management of the school for fixing pay scale, which, as per the management, had already been submitted. After the order was passed by this Court on 18.08.1999, the opposite party no. This Court, vide order dated 18.08.1999, disposed of the three writ petitions directing the opposite party no. 1-State Government to consider the proposal of the management of the school for fixing pay scale, which, as per the management, had already been submitted. After the order was passed by this Court on 18.08.1999, the opposite party no. 1, vide letter dated 29.11.1999 in Annexure-3, directed opposite party no. 4-society to resubmit proposal with proceedings and recommendations of the selection committee. On 30.07.2003 in Annexure-4, the opposite party no. 1 wrote to opposite party no. 4 to furnish certain documents for consideration of the proposals. On 24.09.2003 vide Annexure-5, the opposite party no. 1 wrote to opposite party no. 4 to furnish a fresh selection committee report recommending the petitioner and other two special educators, who were unable to receive salary, and consequentially issued reminder on 09.01.2004 under Annexure-6. Accordingly on 21.01.2004, the opposite party no. 4 sent the proceedings of the selection committee dated 21.01.2004 with specific recommendation. Pursuant thereto, on 04.10.2008, the opposite party no. 1 issued letter to opposite party no. 4 intimating the approval of regular pay scale inter alia in respect of petitioner w.e.f. 01.07.2008 and the grant-in-aid in the approved pay scale was released in favour of the petitioner on 28.02.2009. The petitioner, on 17.04.2009, submitted a representation to opposite party no. 1 pointing out that she was entitled to regular scale of pay w.e.f. 24.02.1994, as per the yard stick prescribed in the Government Resolution dated 24.02.1994, and not from 01.07.2008, and prayed for consideration of her case. The same having not been acceded to, the petitioner has approached this Court by filing this application. 3. Mr. Bikram Prasad Das, learned counsel for the petitioner contended that the entitlement of the petitioner to receive the benefit of regular pay scale w.e.f. 24.02.1994 is based on the government resolution dated 24.02.1994 in Annexure-2, but the petitioner has been extended such benefit w.e.f. 01.07.2008, without taking into account the government resolution referred to above. If the resolution dated 24.02.1994 is taken into consideration, the petitioner will be eligible to receive the benefit of regular pay scale w.e.f. 24.02.1994, instead of 01.07.2008. 4. Mr. S. Palit, learned Addl. Government Advocate for the State contended that whatever benefit admissible to the petitioner has already been released by way of letter dated 04.10.2008 giving effect from 01.07.2008. If the resolution dated 24.02.1994 is taken into consideration, the petitioner will be eligible to receive the benefit of regular pay scale w.e.f. 24.02.1994, instead of 01.07.2008. 4. Mr. S. Palit, learned Addl. Government Advocate for the State contended that whatever benefit admissible to the petitioner has already been released by way of letter dated 04.10.2008 giving effect from 01.07.2008. But so far as the claim made by the petitioner that she is entitled to get the benefit in terms of the resolution 24.02.1994, such relief cannot be granted to the petitioner as she has accepted the benefit already granted to her w.e.f. 01.07.2008, thereby, the writ petition is liable to be dismissed. 5. This Court heard Mr. Bikram Prasad Das, learned counsel for the petitioner and Mr. S. Palit, learned Addl. Government Advocate appearing for the State opposite parties, and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. In view of the facts and contentions delineated above, the only question to be considered in this writ petition is, whether the petitioner is entitled to receive the benefit of regular pay scale with effect from 01.07.2008, as has been already granted, or w.e.f. 24.02.1994, pursuant to resolution passed by the Government on 24.02.1994 in Annexure-2. 7. Since the staff of the schools for the mentally retarded children were not extended with the benefit of revised scale of pay, the Government of Orissa in Panchayati Raj Department passed a resolution on 24.02.1994 in Annexure-2 with regard to grant of grant-in-aid for teaching and non-teaching staff of the institutions for the mentally retarded children. As per clause-5 of the above resolution, the payment of salary of staff of schools for the mentally retarded children shall have to be governed under the Rules, as amended vide resolution dated 28.12.1987, as detailed in paragraph-6 of the said resolution, which reads thus: “6. The management shall be eligible to receive 90% grant-in-aid from the Government to meet the expenses on account of salary subject to the following conditions. The management shall be eligible to receive 90% grant-in-aid from the Government to meet the expenses on account of salary subject to the following conditions. (i) A person who has successfully completed the Junior Educator Course/Diploma Course organized by or in Collaboration with National Institute for the Mentally Handicapped, Secunderabad shall be deemed to have acquired a qualification equivalent to the Teachers Certificate (C.T.) recognized by the Education Department. (ii) A person already engaged in a recognized institution having passed the minimum qualification required for the post will be allowed salary as per norms. (iii) The list of staff members and their scales of pay have been approved by the Government. (iv) Recruitment of qualified staff has been made against the posts already approved by the Government. (v) Recruitment of staff has been done by a Selection Committee comprising of the District Social Welfare Officer of the district, Inspector of Schools and the Secretary of the Organization observing all formalities and duly approved by the Director, Social Welfare, Panchayati Raj Department Government of Orissa. (vi) No assistance shall be made available in respect of posts created or staff appointed by the organization unless it has obtained prior approval of Government. (vii) The assistance shall be reduced or revised if the voluntary organization receives any assistance for the same purpose from the Government of India or any other source.” 8. In view of sub-clause (ii) of Para-6, a person already engaged in a recognized institution, having passed the minimum qualification required for the post, will be allowed salary as per the norms. Annexure-A appended to the said resolution clearly indicates that for the post of Special Educator-cum-Social Worker (T.G.) requisite qualification is B.A., B.Ed. with D.M.R., preference would be given to one having sociology/social work as optional paper in graduation and would be entitled to get the scale of pay of Rs. 1400-2600/-. The petitioner's case is squarely covered by the resolution dated 24.02.1994, as she continued as a Special Educator-cum-Social Worker (T.G.), and is eligible to get the scale of pay of Rs. 1400-2600/-. The said benefit has already been extended to the petitioner with effect from 01.07.2008, vide letter dated 04.10.2008, but reasons for not extending such benefit with effect from 24.02.1994 has not been spelt out anywhere. 9. 1400-2600/-. The said benefit has already been extended to the petitioner with effect from 01.07.2008, vide letter dated 04.10.2008, but reasons for not extending such benefit with effect from 24.02.1994 has not been spelt out anywhere. 9. Franz Schubert said— “Reason is nothing but analysis of belief.” In Black's Law Dictionary, reason has been defined as a “faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions.” 10. It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe. 11. Therefore, reasons being a necessary concomitant to passing an order allowing the authority to discharge its duty in a meaningful manner either furnishing the same expressly or by necessary reference. 12. “Nihil quod est contra rationem est licitum” means as follows: “nothing is permitted which is contrary to reason. It is the life of the law. Law is nothing but experience developed by reason and applied continually to further experience. What is inconsistent with and contrary to reason is not permitted in law and reason alone can make the laws obligatory and lasting.” 13. Therefore, recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is pertinent to note that a decision is apt to be better if the reasons for it are set out in writing because the reasons are then more likely to have been properly thought out. It is vital for the purpose of showing a person that he is receiving justice. 14. In Re: Racal Communications Ltd., (1980) 2 All ER 634 (HL), it has been held that the giving of reasons facilitates the detection of errors of law by the court. 15. In Padfield v. Minister of Agriculture, Fisheries and Food, (1968) 1 All E.R. 694, it has been held that a failure to give reasons may permit the Court to infer that the decision was reached by the reasons of an error in law. 16. 15. In Padfield v. Minister of Agriculture, Fisheries and Food, (1968) 1 All E.R. 694, it has been held that a failure to give reasons may permit the Court to infer that the decision was reached by the reasons of an error in law. 16. In Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836 : AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. 17. Similar view has also been taken in Uma Charan v. State of Madhya Pradesh, (1981) 4 SCC 102 : AIR 1981 SC 1915 . 18. In Travancore Rayons Ltd. v. The Union of India, (1969) 3 SCC 868 : AIR 1971 SC 862 it is observed by the apex Court that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. 19. As no reason has been assigned in letter dated 04.10.2008 extending the benefit w.e.f. 01.07.2008, this Court, vide order dated 25.01.2019, passed the following order: “Mr. S. Mishra, learned Addl. 19. As no reason has been assigned in letter dated 04.10.2008 extending the benefit w.e.f. 01.07.2008, this Court, vide order dated 25.01.2019, passed the following order: “Mr. S. Mishra, learned Addl. Government Advocate seeks time to obtain instructions in the matter why the date of approval of the petitioner made 01.07.2008. Put up this matter after three weeks.” 20. In response to the above, an affidavit has been filed by opposite party no. 3, in paragraphs-2 and 3 whereof, it has been stated as follows: “2. That the deponent humbly submitted that, the petitioner was appointed as Teacher on 01.12.1984 and is rendering his service from 7.12.1984. As the resolution dated 24.02.1994 clearly stipulates that no assistance shall be made available in respect of the post created or staff appointed by the organization unless it is obtained prior approval of the Govt. Accordingly, the selection committee on 21.01.2004 recommended the name of the petitioner for regularization with effect from 24.02.1994. The recommendation was considered by the Govt. and allowed for regular scale of pay with effect from 01.07.2008. 3. That the deponent further humbly submitted that no record is available in the office of the deponent, as to why the Govt. accorded approval for the post of the petitioner with effect from 01.07.2008. In the meantime, a new Department was created for Social Security and the matter pertaining to the present dispute is coming the administrative control of newly created Department of Social Security and Empowerment of Persons with Disability. As such the record has already transferred to the said Department.” 21. On perusal of the aforesaid paragraphs 2 and 3, it would be evident that reasons for not extending the benefits of the scale of pay admissible to the petitioner pursuant to resolution dated 24.02.1994 has not been indicated. Furthermore, there is no rationale behind extension of benefit to the petitioner with effect from 01.07.2008, instead of 24.02.1994. 22. In view of such position, this Court is of the considered view that the petitioner is entitled to get the regular scale of pay w.e.f. 24.02.1994, pursuant to resolution dated 24.02.1994, and not with effect from 01.07.2008 as has already been granted. Thereby, the benefit admissible to the petitioner should be calculated and extended w.e.f. 24.02.1994, pursuant to resolution dated 24.02.1994 in Annexure-2, as recommended by the management, instead of 01.07.2008. Thereby, the benefit admissible to the petitioner should be calculated and extended w.e.f. 24.02.1994, pursuant to resolution dated 24.02.1994 in Annexure-2, as recommended by the management, instead of 01.07.2008. Accordingly, the State opposite parties are directed to compute the entitlement of the petitioner, as per the above observation, and release such benefits in favour of the petitioner as expeditiously possible, preferably within a period of three months from the date of communication of this order. 23. The writ petition is thus allowed. No order to costs.