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2021 DIGILAW 68 (ORI)

Bairagi Charan Sahoo v. State Of Orissa

2021-02-17

B.R.SARANGI

body2021
JUDGMENT Dr. B.R. Sarangi, J. - The petitioner, who was working as Hindi Teacher in Brundaban Vidyapitha, Markandpur in the district of Jagatsinghpur, has filed this writ petition to quash the order dated 22.09.2005 passed by the authority in rejecting his claim for grant of time bound advancement scale of pay on completion of 15 years of service in one post, and further seeks direction to the opposite parties to allow him to get the time bound advancement scale of pay on completion of 15 years of service of his initial date of appointment, i.e., 02.07.1982 and pay differential amount with admissible interest within a stipulated time. 2. The factual matrix of the case, in hand, is that the petitioner was appointed as Hindi Teacher in Brundaban Vidyapitha, Markandpur in the district of Jagatsinghpur w.e.f. 02.07.1982. The said school became aided educational institution w.e.f. 01.03.1987. As the petitioner acquired higher 'Ratna' qualification on 25.10.1996 from Rastrabhasa Prasar Samiti, Wardha and subsequently HTTC, Hindi Training qualification on 29.12.1999, accordingly the basic scale of pay of the petitioner was enhanced under the Orissa Revised Scale of Pay Rules, 1998. The Government adopted time bound advancement pay scale to the teachers, who completed 15 years of service in the same grade or post prior to 01.01.1995 and, as such, the benefit was extended to similarly situated persons under the Orissa Revised Scale of Pay Rules, 1998. As the said benefit was not extended to the petitioner, he filed representation before opposite party no.3-Circle Inspector of Schools, Jagatsinghpur through proper channel, which was duly forwarded by the Headmaster of the school on 19.02.2003. The claim of the petitioner having not been acceded to by the Circle Inspector of Schools, Jagatsinghpur, he approached this Court by filing W.P.(C) No.6811 of 2003, which was disposed of vide order dated 07.01.2004 directing the Circle Inspector of Schools, Jagatsinghpur to consider the representation of the petitioner within a period of two months. 2.1 Since the order of this Court was not complied with, the petitioner filed CONTC No.1457 of 2005. In the same, Circle Inspector of Schools, Jagatsinghpur on being noticed filed show cause. The said contempt petition was finally heard on 18.06.2010 and was dropped taking into consideration the unconditional apology tendered by the Circle Inspector of Schools, Jagatsinghpur for unintentional delay. In the same, Circle Inspector of Schools, Jagatsinghpur on being noticed filed show cause. The said contempt petition was finally heard on 18.06.2010 and was dropped taking into consideration the unconditional apology tendered by the Circle Inspector of Schools, Jagatsinghpur for unintentional delay. This Court construing that there was prima facie case of contempt, instead of proceeding under the Contempt of Courts Act, though accepted the show cause filed, but imposed a cost of Rs.1000/-against the then Circle Inspector of Schools, Jagatsinghpur. In the show cause affidavit, it was specifically stated that the petitioner is not entitled to the time bound advancement scale of pay, as he had not completed 15 years of service in one post by 02.10.1989, i.e., prior to the date of withdrawal of scheme by the Government. It was further stated, as the petitioner was allowed trained scale of pay of Rs.4500-7000/- as on 29.12.1999, he would be entitled to the time bound advancement benefit on completion of 15 years, i.e., on 25.12.2014. The rejection of time bound advancement scale of pay was on the ground that the petitioner had been allowed trained scale of pay of Rs.4500-7000/- as on 29.12.1999 after acquiring the higher qualification. Hence this application. 3. Mr. B. Parida, learned counsel for the petitioner contended that the time bound advancement scale of pay is applicable on completion of 15 years of service from the date of initial appointment with same 'post' or 'grade' and admittedly the petitioner joined in the post on 02.07.1982 and due to stagnation in the post and as there is no avenue for promotion, on completion of 15 years of service in the said post, the petitioner is entitled to get the time bound advancement scale of pay after 02.07.1997. It is further contended that the petitioner acquired higher qualification on trained 'Ratna' in the year 1999 and thereafter though his basic scale of pay was enhanced as per Orissa Revised Pay Rules, 1998 by granting the scale of pay of Rs.4500-7000/-, that itself cannot disentitle him to get the time bound advancement scale of pay on completion of 15 years of service from the date of his initial appointment, i.e., 02.07.1982 under the provisions of Orissa Revised Scale of Pay Rules 1998. It is further contended that while passing the order impugned, the authority has not applied its mind to the extent mentioned above and mechanically rejected the claim of the petitioner. It is contended that though the petitioner, prior to filing of the present writ petition, had approached this Court by filing W.P.(C) No.4915 of 2011, but the same was withdrawn on 19.01.2012 to file better application. Consequentially, the present application has been filed where emphasis has been laid on the words 'post' or 'grade' in the scale of pay, which an employee had been drawing. It is further contended that the scale of pay may undergo changes during the tenure of service of an employee following revision of pay scale from time to time or the employee's acquiring higher qualification. As per the finance department office memorandum, an employee who has held the same 'post' or 'grade' for 15 years is to be considered for advancement scale of pay. Therefore, nonconsideration of the same is arbitrary, unreasonable and contrary to the provisions of law. To substantiate his contention, reliance has been placed on the judgment of this Court in the case of Balabhadra Sarangi v. State of Orissa, 2003 (I) OLR 24 . 4. Mr. S. Jena, learned Standing Counsel for School and Mass Education Department argued with vehemence by justifying the action taken by the authority vide impugned order and contended that the petitioner was appointed as Hindi Teacher in Brundaban Vidyapith, Markandpur in the district of Jagatsinghpur having matric (Kovid) qualification w.e.f. 02.07.1982 in the scale of pay of Rs.300-470/-. Subsequently, he acquired 'Ratna' qualification on 25.10.1996 from Rastrabhasa Prasar Samiti, Wardha and HTTC, Hindi Training qualification on 29.12.1999 and was allowed Hindi trained scale of pay of Rs.4500-7000/- w.e.f. 29.12.1999 vide letter dated 23.02.2000. The school in question is an aided educational institution and got minimum grant-in-aid w.e.f. 01.03.1987 and, as such, the school was taken over by the Government from 07.06.1994. The Government in Finance Department Office Memorandum no.2151/F dated 22.03.1995 decided that the employees who have completed 15 years of service under aided non-government educational institution, government educational institution taken together in the same 'post', same 'grade' with the same scale of pay, will be entitled to the benefits of time bound advancement scale of pay. The Government in Finance Department Office Memorandum no.2151/F dated 22.03.1995 decided that the employees who have completed 15 years of service under aided non-government educational institution, government educational institution taken together in the same 'post', same 'grade' with the same scale of pay, will be entitled to the benefits of time bound advancement scale of pay. But the said scheme was withdrawn by the Government w.e.f. 02.10.1989 after introduction of Revised Scale of Pay Rules, 1989. It is contended that the petitioner is not entitled to the benefit of time bound advancement scale of pay, as he had not completed 15 years of service in one post with same scale of pay by 02.10.1989, i.e., prior to withdrawal of scheme by the Government. It is further contended that the petitioner was allowed Hindi trained scale of pay of Rs.4500-7000/- w.e.f. 29.12.1999 and, therefore, he is entitled to time bound advancement scale of pay on completion of 15 years of service on 29.12.2014, as per S.S. No.52119/F dated 11.11.2002. Thereby, no illegality or irregularity has been committed by the authority in rejecting the claim of the petitioner for grant of time bound advancement scale of pay and, as such, the order impugned is well justified. It is contended that this Court may not interfere with the same at this stage. 5. This Court heard Mr. B. Parida, learned counsel for the petitioner and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department through virtual/physical mode, and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. On the basis of factual matrix, as delineated above, it is admitted that the petitioner joined as a Hindi teacher having matric (Kovid) qualification on 02.07.1982 in the scale of pay of Rs.300-700/- and 15 years from the date of his appointment completed on 01.07.1997 in the same 'grade' and 'post' held by the petitioner. Subsequently, though he acquired 'Ratna' qualification on 25.10.1996, but HTTC, Hindi Training qualification was acquired by him on 29.12.1999, and, therefore, he was allowed Hindi trained scale of pay of Rs.45007000/- w.e.f. 29.12.1999. But, prior to extension of Hindi trained scale of pay, he had already completed 15 years of service in matric (Kovid) qualification in the scale of pay of Rs.300-470/-. But, prior to extension of Hindi trained scale of pay, he had already completed 15 years of service in matric (Kovid) qualification in the scale of pay of Rs.300-470/-. Therefore, if 15 years period is counted from the date of his initial appointment, i.e., 02.07.1982, it will be completed on 01.07.1997. As such, time bound advancement scale of pay is admissible to the petitioner in view of the fact that time bound advancement scale of pay was granted to the teachers who have completed 15 years of service in the same 'post' or 'grade' prior to 01.01.1985 and are entitled to the benefit under Orissa Revised Scale of Pay Rules, 1998. 7. The pay means wages or salary for services rendered. Pay includes dearness pay, special pay and personal pay, but does not include the special pay granted in view of the personal qualification of the employee or sanctioned for the post held by the employee or granted in view of the position of the employee in the cadre. The reference to scale of pay in the service rules shall be construed as reference to the revised scale of pay specified in the latest Revision of Pay and Allowance Rules and the pay shall be construed accordingly. All officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to be holding posts in the same grade. 8. In Bombay Dyeing and Manufacturing Co. v. State of Bombay, AIR 1958 SC 328 , the apex Court held that a Government employee is entitled to draw the pay while he is on duty. The duty includes the departmental examination or any other optional examination or training of the Government employees, provided they are permitted to do so by the authority concerned. When an employee has done his work, the amount of wages earned by him becomes a debt due to him from the employer and is property, which can be assigned under law. If the pay has accrued, the right to receive it becomes a Fundamental Right. In State of Maharastra v. Bhaishankar Aualram Joshi, AIR 1969 SC 1302 , the apex Court held that once pay is fixed, the liability to pay it arises out of contract. 9. It is worthwhile to mention here that an ordinary increment is earned as a matter of course even during disciplinary proceedings unless withheld. In State of Maharastra v. Bhaishankar Aualram Joshi, AIR 1969 SC 1302 , the apex Court held that once pay is fixed, the liability to pay it arises out of contract. 9. It is worthwhile to mention here that an ordinary increment is earned as a matter of course even during disciplinary proceedings unless withheld. The conditions for counting service for increment in the time scale of pay have been laid down in various provisions of the service rules. The increments on promotion must be given as per mandate of the service rules applicable to the employees. The time bound advancement scale of pay is granted to an employee because of stagnation he faced for future promotion and accordingly under the service rules, if a person continues in a 'post' or 'grade' for a period of 15 years without getting any promotion, he/she is entitled to get the time bound advancement scale of pay on completion of 15 years of service in one 'post' with the same scale of pay. 10. Similar question had come up for consideration before this Court in Balabhadra Sarangi mentioned supra. In the said case, the petitioner was working as a Classical Teacher in an aided educational institution and was denied the benefit of time bound advancement scale of pay. This Court holding that 15 years of service has to be counted from the date of appointment for the purpose of granting advancement scale of pay because the benefit if intended to be given irrespective of other benefit that could have been granted on acquiring higher educational qualification and an employee who has held the same 'post' or 'grade' for 15 years is to be considered for the advancement scale of pay, directed the authorities for payment of advancement scale of pay on completion 15 years of service. As such, for extension of such benefit, this Court, placing reliance on the judgments of this Court in Bata Krishna Sahu v. State of Orissa (OJC No.115 of 1992 disposed of on 05.05.1994), Sanatan Barik v. State of Orissa (OJC No. 124 of 1992 disposed of on 02.05.1995), Karunakar Biswal v. State of Orissa, 82 (1996) CLT 666 and Jyostna Mayee Behera v. State of Orissa, 2000 (II) OLR 544 , in paragraph-4 of the judgment in Balabhadra Sarangi mentioned supra held as follows:- '4. The point involved in this writ petition is no more res integra. The point involved in this writ petition is no more res integra. The first decision of this Court on this point is that of Bata Krishna Sahu v. State of Orissa (OJC No.115 of 1992 disposed of on 05.05.1994), Chief Justice Nanavati speaking for the Bench held:- "There is nothing on record to show that as a result of the petitioner acquiring higher qualification, namely, the degree of B.A. the 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 some 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 pay scale." The aforesaid ratio was subsequently followed in Sanatan Barik v. State of Orissa (OJC No. 124 of 1992 disposed of on 2.5.1995), Karunakar Biswal v. State of Orissa, 82 (1996) CLT 666 as well as in Jyostna Mayee Behera v. State of Orissa, 2000 (II) OLR 544 . It has been consistently held in all the cases that 15 years of service has to be counted from the date of appointment for the purpose of granting advancement scale of pay because the benefit is intended to be given irrespective of other benefit that could have been granted on acquiring higher educational qualification. Emphasis had been laid on the words 'grade or post' and not on scale of pay which an employee had been drawing. The scale of pay may undergo changes during the tenure of service of an employee following revision of pay scale from time to time or on the employee's acquiring higher academic qualification. As per the Finance Department office memorandum, referred to above, an employee who has held the same post or grade for 15 years is to be considered for the advancement scale of pay. 11. As per the Finance Department office memorandum, referred to above, an employee who has held the same post or grade for 15 years is to be considered for the advancement scale of pay. 11. Taking into consideration the principle of law, as discussed above, and applying the same to the present context, this Court is of the considered view that though the petitioner joined as Hindi Teacher on 02.07.1982 with a qualification of Matric (Kovid) and subsequently he acquired 'Ratna' qualification on 25.10.1996 and HTTC, Hindi Training qualification on 29.12.1999 and was allowed the Hindi trained scale of pay of Rs.4500-7000/- w.e.f. 29.12.1999, that itself cannot disentitle him to get the time bound advancement scale of pay for continuous holding the 'post' or 'grade' for 15 years. Thus, drawal of higher scale of pay on account of acquisition of 'Ratna' qualification by the petitioner being immaterial, he is eligible to enjoy the benefit of time bound advancement scale of pay on completion of 15 years for holding of Hindi teacher 'post' or 'grade' w.e.f. 02.07.1982 in accordance with Finance Department Memorandum dated 29.12.1987, which fact has been clarified by the Government on 20.06.1991, as has been dealt with in the judgment passed by this Court in Balabhadra Sarangi mentioned supra. In the meantime, though the petitioner has retired from service on attaining the age of superannuation, but that ipso facto cannot disentitle him to get the benefit, as claimed in the writ petition. 12. In view of the facts and circumstances as well as the law, as discussed above, this Court is of the considered view that the petitioner is entitled to get the time bound advancement scale of pay on completion of 15 years of service from the date of his initial appointment, i.e., 02.07.1982. Therefore, this Court directs the opposite parties to calculate the differential arrear salary and pay the same to the petitioner forthwith preferably by 31st May, 2021, failing which it will carry an interest @ 9% per annum. 13. In the result, the writ petition is allowed. However, there shall be no order as to costs.