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2022 DIGILAW 410 (ORI)

Pratap Chandra Nayak v. State of Odisha

2022-09-02

SASHIKANTA MISHRA

body2022
JUDGMENT Sashikanta Mishra, J. - The petitioners have undertaken multiple journeys to this Court seeking the desired relief. The present writ application which, hopefully would be their last in so far as this particular grievance is concerned, has been filed seeking the following relief: 'Under the above circumstances, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to direct the opp.party no.3 to release the arrear as well as the current salary of the petitioners already sanctioned vide order under Annexure-5 and 6 respectively within a stipulated period' 2. Bereft of unnecessary details, the facts of the case are that the petitioner no.1 was appointed as the Headmaster of the School by the Managing Committee after following due process of selection upon death of the previous incumbent. The petitioner no.2 was appointed against the post of Assistant Teacher. The school, namely, Mangala U.P. School at Naguan in the district of Jajpur was established in the year 1992 and was notified as an aided educational institution as per Section-3(b) of the Odisha Education Act, 1969 (in short, the Act) w.e.f. 01.01.2004 and block grant was sanctioned and released in favour of staff members under the Grant-in-Aid Order, 1994. The appointment of the petitioners was approved and they were in receipt of block grant by the then District Inspector of Schools, Jajpur. While the school was functioning as usual, a dispute arose among the villagers resulting in locking of the school by some of them. The D.I. of Schools ordered for opening of the school with the help of police but because of protest by the villagers, the same could not be done. Accordingly, by letter dated 16.03.2012, the D.I. of Schools suggested to the Director Elementary Education, Odisha for adjustment of the petitioners in neighbouring schools. Since no action was taken, the petitioners approached this Court in W.P.(C) No.23755 of 2015, which was disposed of directing the Director, Elementary Education to consider the claim of the petitioners. However, the claim of the petitioners was rejected by order dated 31.03.2016 of the Director, against which the petitioners approached this Court in W.P.(C) No. 10848 of 2016. By order dated 29.04.2016, this Court disposed of the writ petition with the following directions: 'The petitioner no.1 is the Headmaster and petitioner no.2 is an Assistant Teac her in Mangala U.P. School, Naguan in the district of Jajpur. By order dated 29.04.2016, this Court disposed of the writ petition with the following directions: 'The petitioner no.1 is the Headmaster and petitioner no.2 is an Assistant Teac her in Mangala U.P. School, Naguan in the district of Jajpur. The school in question is a Block Grant School. The grievance of the petitioners is that due to the internal rivalry between two groups in the village, the school was closed. They approached the authorities to adjust them in nearby schools, since they are approved staffs. But then by order no.6130 dated 31.3.2016 passed by the Director, Elementary Education, Odisha, vide Annexure-15, the representations were rejected on the ground that there is no rule or guideline for transfer/adjustment/deployment of Block Grant Teachers. Heard Mr. S.K. Das, learned counsel for the petitioners and Mr. Bisoi, learned Standing Counsel for the School and Mass Education Department. When a school was closed due to the internal rivalry between two groups in the village, it is incumbent on the part of the educational authorities as well as the District Administration to see that school is opened and students prosecute their studies in the said school. Being helpless, the petitioners made representations to adjust them in nearby school. They do not have any option. The petitioners did not claim that they should be adjusted or transferred to any particular school. In view of the fact that the school is closed, the Block Education Officer, Rasulpur, opposite party no.3, shall adjust the petitioners in any Block Grant School of the district within a period of one month from the date of production of a certified copy of this order. The District Collector, Jajpur shall take steps for opening of school so that the career o f the students may not suffer. The petition is disposed of. Free copy of this order be handed over to learned Additional Government Advocate.' 3. It is stated that despite such order, no action has yet been taken on the representation submitted by the petitioners. It is further stated that the petitioners have not been paid their salary even though the same was released by the Government for the period from 01.04.2013 to 31.03.2014 and for March and April, 2015. Hence, the present writ petition. 4. The State-opposite parties have filed a counter affidavit stating that because of quarrel between two groups of villagers it was not possible to run the school. Hence, the present writ petition. 4. The State-opposite parties have filed a counter affidavit stating that because of quarrel between two groups of villagers it was not possible to run the school. As such, the Director of Elementary Education requested the D.I. of Schools to stop the block grant in favour of the school by letter dated 22.03.2012. Accordingly, the block grant was withdrawn and the school was closed from 19.05.2011 onwards. It is further stated that in obedience to the direction of this Court passed in W.P.(C) No.10848 of 2016, the petitioners have been adjusted in other schools and have joined in their duties on 13.06.2019 and have been getting their monthly salary regularly. It is also stated that as the school was locked by the villagers from 19.05.2011 and block grant was withdrawn from 31.03.2012, the question of releasing salary of the petitioners for the aforesaid period does not arise. 5. The petitioners have filed rejoinder refuting the averments made in the counter. It is stated that though the petitioners are being paid their current salary w.e.f. 13.06.2019, but the same is without any incremental dues. In any case, the claim of the petitioners for release of their arrear salary i.e., from 01.03.2013 to 12.06.2019, is said to have already been sanctioned. It is further stated that the petitioners cannot be blamed for the lockdown of the institution and that they must be deemed to have been working during the relevant period. It is further stated that on consideration of the claim/representation of the petitioners, the Director directed the Block Education Officer (BEO), Rasulpur to submit a factual report and to report compliance by paying the arrear salaries, if not paid within a fortnight. In compliance of such order, the BEO in his letter dated 21.06.2021 requested the Director to re-allot funds, which was surrendered due to non-payment of arrear salary of the petitioners to the tune of Rs.25,08,477/-. 6. Additional counter affidavit has been filed by the Director, Elementary Education (opposite party No.2). The letter dated 08.04.2021, enclosed as Annexure 7 to the rejoinder, has been disputed as not being issued with application of mind. Another letter purporting to have been issued also on 08.04.2021, is enclosed as Annexure- A/2 to the additional counter affidavit which is at variance from the letter enclosed as Annexure-7. The letter dated 08.04.2021, enclosed as Annexure 7 to the rejoinder, has been disputed as not being issued with application of mind. Another letter purporting to have been issued also on 08.04.2021, is enclosed as Annexure- A/2 to the additional counter affidavit which is at variance from the letter enclosed as Annexure-7. Reference has also been made to office order dated 19.08.2022, whereby the letter dated 08.04.2021 issued to BEO, Rasulpur was rescinded. While admitting the factual aspect relating to closure of the school it is basically stated that the petitioners were appointed by the Managing Committee of the school and therefore after closure of the said school there was no employer-employee relationship between them and the Government. The petitioners were adjusted in other schools in obedience to the directions issued by this Court and the same has to be treated as fresh appointment having no link whatsoever with their previous appointment in the private school. It is also stated that there was no specific direction of this Court to count the past period of service of the petitioners from the date of joining in the previous school. It is also stated that the letter dated 08.04.2021 was fraudulently prepared by some staff of the Directorate at the instance of the petitioners and therefore, it was recalled/rescinded. It is thus, stated that the petitioners are not entitled to receive arrear salary for the period from 01.03.2012 to 13.06.2019. 7. Heard Mr. S.K. Das, learned counsel for the petitioner and Mr. R.N. Acharya, learned Standing Counsel for School and Mass Education Department. 8. It is argued by Mr. Das that the admitted facts of the case are that the petitioners were appointed by the Managing Committee of the school and such appointments were duly approved by the then Inspector of Schools. It is also admitted fact that the school received block grant as per GIA Order, 2004 w.e.f. 01.01.2004. Therefore, the school is an aided educational institution within the meaning of Section 3(b) of the Act. Mr. Das further contends that admittedly the School was locked down/closed by the villagers because of certain internal disturbances among them in which the petitioners had no role whatsoever to play. Undoubtedly, the petitioners were adjusted in other schools but only with effect from 13.06.2019. Mr. Das further contends that admittedly the School was locked down/closed by the villagers because of certain internal disturbances among them in which the petitioners had no role whatsoever to play. Undoubtedly, the petitioners were adjusted in other schools but only with effect from 13.06.2019. The period from 01.03.2012 to 12.06.2019 was not regularized by the authorities and the petitioners were kept hanging without any work for no fault of their own. Therefore, they cannot be deprived of their rightful salary for the said period. It is further argued by Mr. Das that once the institution receives aid either in the form of GIA or block grant, it becomes an aided educational institution within the meaning of the Act and therefore, the staff are to be treated as borne in the common cadre. In support of his contention, Mr. Das has relied upon the decision of this Court in the case of Akshaya Kumar Beura vs. Director Higher Secondary Education and others reported in 1991(II) OLR 87 , wherein it was held that all persons who were appointed in aided colleges as Lecturers in the regular manner are borne in the common cadre are liable to be transferred as per power vested in the Government under Sub-section (6) of Section 10-C of Act. Mr. Das contends that same principle will also apply to the aided schools. Mr. Das has also relied upon another decision of this Court rendered in the case of Ritanjali Giri @ Paul vs. State of Odisha and others reported in 2016 (I) ILR-CUT- 1162, wherein it was held that the Act does not make any distinction between the full grant school or block grant school and therefore the provisions of OCS (Rehabilitation Assistance) Rules, 1990 cannot be denied to a school receiving block grant. On the same analogy, the Government cannot be permitted to contend that it has got no employer-employee relationship with the petitioner. 9. Per Contra, Mr. R.N. Acharya had forcefully argued that the letter enclosed as Annexure-7 is a fraudulent document, evidently manufactured at the instance of the petitioners and therefore, the original letter dated 08.04.2021, which is enclosed as Annexure-A/2, has been recalled. It is further argued by Mr. 9. Per Contra, Mr. R.N. Acharya had forcefully argued that the letter enclosed as Annexure-7 is a fraudulent document, evidently manufactured at the instance of the petitioners and therefore, the original letter dated 08.04.2021, which is enclosed as Annexure-A/2, has been recalled. It is further argued by Mr. Acharya that the petitioners were engaged by the Managing Committee of the School, which is a private school and therefore once the School is closed for whatever reason, the service of the petitioners automatically comes to an end. The fact that the petitioners were adjusted in other schools w.e.f. 13.06.2019 is of no consequence because the same was done in obedience to the directions issued by this Court and therefore, has to be treated as a fresh appointment. The petitioners are therefore not entitled to any salary for the past period, in which admittedly they had not performed any duty. 10. On a careful consideration of the materials on record and the rival contentions noted above, it is evident that two questions primarily arise for determination in the present case; (i) Whether the adjustment of the petitioners in other schools w.e.f. 13.06.1991 is to be treated as fresh appointment. (ii) Are the petitioners entitled to arrear salary for the period from 01.03.2012 to 12.6.2019 in the facts and circumstances of the case? 11. There is no dispute that the school in question was a private school, established in the year 1992. As per the GIA Order, 1994, block grant was sanctioned and released in favour of the staff members of the school w.e.f. 01.01.2004 and the institution was notified as an aided educational institution. Section 3(b) of the Act reads as follows : '3(b) Aided Educational Institution means private educational institution which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in-aid.' 12. Section 3(b) of the Act reads as follows : '3(b) Aided Educational Institution means private educational institution which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in-aid.' 12. In the case of Akshaya Kumar Beura (supra), a Division Bench of this Court, after analyzing the different provisions of the Act as well as Odisha Aided Educational Institutions Employee's Common Cadre and Inter- transferability Rules, 1979 (in short 'Common Cadre Rules') categorically held that all persons appointed in aided colleges as lecturers in the regular manner are borne in the common cadre and the petitioner therein being one such, is within the common cadre and was liable to be transferred as per power vested in Government under Sub-section (6) of Section 10-C of the Act as also under the Common Cadre Rules. The above decision was relied upon by another Division Bench of this Court in W.A. No. 545 of 2016, which was a writ appeal preferred by the State against the order passed in W.P.(C) No.10848 of 2016 directing the authorities to adjust the petitioners in other schools. The Division Bench after noting the facts of the case held that because of internal dispute between two groups of the villagers, the school was closed/locked and direction was given to stop the block grant in its favour, but it was never withdrawn or it was never taken out of the list of schools eligible or entitled to receive the block grant. Further, the order dated 26.07.2013 of the Government in SME Department was relied upon whereby it was decided that schools in receipt of Block Grant as per GIA order 2004 shall receive GIA @ 75% of the initial pay of the concerned employees. Mangala U.P. School is one of such schools so notified. The Division Bench also referred to the decision of the Single Bench rendered in the case of Ritanjali Giri (supra) and held that direction of the learned Single Judge to adjust the petitioners in any other block grant schools was within the purview of Sub-section (6) of Section 10-C of the Act and Common Cadre Rules. Such being the factual and legal position, there is no way by which the adjustment of the petitioners in other schools w.e.f. 13.06.2019 could be treated as fresh spell of appointment. Such being the factual and legal position, there is no way by which the adjustment of the petitioners in other schools w.e.f. 13.06.2019 could be treated as fresh spell of appointment. This is more so because once the institution is notified as an aided educational institution within the meaning of the Act and its employees have been given block grant, they cannot simply be left out on the ground that their initial engagement was by the private management. Such an interpretation would run contrary to the spirit and intendment of the Act as well as the Common Cadre Rules, 1979. It is also highly significant to note that in the order dated 16.03.2012 (Annexure-3) the District Inspector of Schools sought for permission of the Director, Elementary Education to 'adjust' the petitioners in two Schools. Further in their counter affidavit filed by the opposite parties it is stated in paragraph-10 that '..... this deponent issued order vide office order No.734 dt.13.06.2019 adjusting the petitioner at ......' (emphasis supplied). It is evident that there is not even a whisper that it was a fresh spell of appointment of the petitioners. The first point framed for determination is answered accordingly. 13. Admittedly, the petitioners were prevented from performing their duties because of an internal dispute among the villagers resulting in locking/closing the school. Obviously the petitioners cannot be put to blame for such deployment and in fact, they have not been so blamed. This Court, in its order dated 29.07.2016 while directing the authorities to adjust the petitioners in any block grant schools of the district, also directed the District Collector, Jajpur to take steps for opening of the school so that career of the students may not suffer. No action appears to have been taken in this regard by the Collector. It is a matter of surprise that the State with all the resources available at its disposal proved to be helpless before two groups of villagers, who took it upon themselves to close down the school because of some internal dispute among them. As a result, the valuable and constitutional right of the children of the village to receive education could be thwarted by a group of persons having vested interest and in failing to act properly at the relevant time, the Government must be deemed to have perpetuated the illegality. As a result, the valuable and constitutional right of the children of the village to receive education could be thwarted by a group of persons having vested interest and in failing to act properly at the relevant time, the Government must be deemed to have perpetuated the illegality. Be that as it may, fact remains that the petitioners were prevented from performing their duties way back from 01.03.2012 onwards. The concerned authorities sat over the matter doing practically nothing and acted only after passing of the order by this Court, that too, on 29.07.2016 by adjusting the petitioners in other schools w.e.f. 13.06.2019. Such being the factual aspect of the case, it would be preposterous to suggest that the petitioners would not be entitled to salary during the interregnum. The second question framed for determination is answered accordingly. 14. It would be relevant to state here that the authorities were directed by this Court in W.P.(C) No. 10848 of 2016 by order passed way back on 29.04.2016 to adjust the petitioners in any block grant School but the authorities challenged the same in W.A. No. 545 of 2016. The said writ appeal was dismissed by order dated 11.01.2019. The petitioners were adjusted in other Schools by order dated 13.06.2019. This Court has also held that such adjustment of the petitioners in the concerned Schools cannot be treated as a fresh appointment and further that they cannot be blamed for not performing any duties during the interregnum. In such view of the matter, this Court has no hesitation in holding that non-payment of the arrear salary for the interregnum period cannot be approved. 15. For the forgoing reasons, the writ petition is allowed by directing the opposite party authorities to release the arrear salary of the petitioners from 01.03.2013 to 12.06.2019 within a period of two months from the date of communication of this order or on production of certified copy thereof by the petitioners. It goes without saying that current salary of the petitioners shall also be paid, if there is no other legal impediment.