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2024 DIGILAW 56 (ORI)

Ashok Kumar Mahanty v. State of Odisha

2024-05-17

SASHIKANTA MISHRA

body2024
JUDGMENT Sashikanta Mishra, J. The petitioners in the present writ application, by questioning the correctness of order dated 07.06.2019 passed by the Commissioner-cum-Secretary to Government in the Department of Higher Education, Orissa seek quashment of the same. All the four petitioners were appointed as Lecturers in different disciplines by the Governing Bodies of different non-aided institutions. Their appointments were duly approved by the State Government and accordingly they were paid their salary components with effect from their date of appointments. They were also placed in the common gradation list prepared by the Director, Higher Education in accordance with the Orissa Aided Educational Institutions Employee's Common Cadre and Inter-transferability Rules, 1979. All of them were given the benefit of UGC scale of pay by considering their approved date of appointments. They were also given the benefit of Senior Lecturer Scale of Pay and Reader Scale of Pay as provided under the UGC guidelines. 2. The relevant particulars of the petitioners is reflected in the table below: Name of the petitioners with date of joining Date of joining as approved by Govt. Date of release of Grant-inAid Date of release of UGC scale of pay Date of release of Lecturer (SS) of pay Date of release of Reader scale of pay/Sr. Reader scale of pay Dr. Ashok Kumar Mohanty 07.09.1982 01.06.1983 01.06.1988 01.06.1988 01.06.1993 (M. Phil 1986, Ph.D. 1991) 01.06.2001 / 01.06.2006 Girija Sankar Sahoo 10.09.1980 10.09.1980 10.09.1985 01.01.1986 10.09.1993 10.09.2001 / 10.09.2006 Prasanta Kumar Das 08.11.1982 01.06.1983 01.06.1988 01.06.1988 01.06.1996 01.06.2004 / 01.06.2009 Dr. Chitaranjan Nayak 10.08.1985 10.08.1985 01.06.1987 01.06.1987 10.08.1998 28.02.2004. (Ph.D 2004 / 28.02.2009) Since career advancement benefits were granted to them considering the date of their receiving grant-in-aid and not from their approved date of appointment, the petitioners along with some other Lecturers had approached this Court in OJC No.3837 of 1998. Their specific prayer was for grant of Senior Lecturer Scale of Pay on completion of eight years of service in case of non-M.Phill and non-Ph.D candidates and for grant of the said scale of pay to the M.Phill and Ph.D qualified candidates after seven years and five years respectively of qualifying service basing on the approved date of their appointments. Such claim was based on a common judgment rendered by a Division Bench of this Court in OJC No. 4912 of 1993 decided on 13.12.1996. Such claim was based on a common judgment rendered by a Division Bench of this Court in OJC No. 4912 of 1993 decided on 13.12.1996. The writ petition filed by the petitioners was disposed of by order dated 17.01.2019 directing the opposite party authorities to consider and decide their claim in terms of the common Judgment dated 13.12.1996. Be it noted that at the time of hearing of the case, the State Counsel in the said case, conceded that the issue involved in the writ petition (OJC No. 3837 of 1998) stood already decided in the common judgment which was confirmed by the Apex Court. Pursuant to such order passed by this Court, the State Government issued notice to the petitioners for personal hearing. The petitioners were personally heard by the Commissioner-cum-Secretary on 20.04.2019 and 13.05.2019. Ultimately, by order dated 07.06.2019, copy enclosed as Annexure-3 and impugned in the present writ application, the Commissioner-cum-Secretary rejected the claim of the petitioners by holding that in view of the amendment to Section 7-C of the Orissa Education Act, particularly by insertion of sub-Sections (4-a) and (4-b) thereof, the common judgment dated 13.12.1996 has no application to the petitioners' case. Being thus aggrieved, the petitioners have approached this Court seeking the following relief; 'Under the above circumstance, it is therefore humbly prayed that this Hon'ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by quashing the order passed by the opposite party no.1 dated 07.06.2019 vide Annexure-3 to the writ application. And this Hon'ble Court be further pleased to direct the opposite parties, more particularly the opposite party no. 1 to extend the benefit of career advancement scale of pay as per Annexure-4 in favour of the petitioners by computing from the approved date of appointment instead of deducting five years from thereof and to calculate the same and release the same in favour of the petitioners within a time frame. And for this act of kindness, as in duty bound, the petitioners shall ever pray. ' 3. And for this act of kindness, as in duty bound, the petitioners shall ever pray. ' 3. In the counter affidavit and further affidavit filed by the opposite party authorities, the impugned order is sought to be justified on the ground that the prayer of the petitioners was for allowing the benefit of Career Advancement Scheme by computing the required qualifying service from the date of their respective appointments as approved by the competent authority without deducting five years of initial service as per the ratio decided in the common judgment. However, the benefit of Career Advancement Scheme in the post of Lecturer (SS) has been approved following the principles contained in the Government Resolution dated 06.10.1989 read with sub-section (4-a) and (4-b) of Section 7-C of the Orissa Education Act. It is further stated that the deduction of five years of initial service from the date of valid joining of a Lecturer in a non-Government Aided College for giving grant-in-aid is legally valid. Reference has been made to the amended provisions of sub-sections (4-a) and (4-b) of Section 7-C of the Orissa Education Act. These provisions were inserted in 1998 with retrospective effect from 01.01.1986 and have held the ground for more than 23 years. Grant-in-aid has been accordingly provided to the Lecturers/Readers by deducting five years of initial service. Therefore, for availing promotion in the Career Advancement Scheme a Lecturer has to put in 5+8+8 years of service, i.e., 21 years of service reckoned from the approved date of receipt of grant-in-aid for reaching the Reader Pay Scale. It is also stated in the affidavit filed on behalf of the opposite party No.1 that in case of SSB sponsored candidates the mandatory period of five years is not deducted to count their service for the purpose of Career Advancement Scheme as they are in receipt of full grant-in-aid from their dates of joining. 4. Heard Mr. J.K. Rath, learned Senior Counsel along with Mr. D.N. Rath, learned counsel for the petitioners and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 5. Mr. 4. Heard Mr. J.K. Rath, learned Senior Counsel along with Mr. D.N. Rath, learned counsel for the petitioners and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 5. Mr. Rath would forcefully argue that the Commissioner-cum-Secretary has made a complete misreading of the order of this Court passed in OJC No. 3837 of 1998 inasmuch as the specific direction was to consider and decide the claim of the petitioner in terms of the common judgment dated 13.12.1996 by affording opportunity of hearing to the petitioners. The case of the petitioners in so far as it relates to prayer for non-deduction of five years of initial service is to be considered in the above context and in isolation. To such extent therefore, the case of the petitioners is for grant of the benefit of Career Advancement Scheme by computing the qualifying service from the date of their appointment as approved by the Government and not from the date of receipt of grant-in-aid. This is exactly what was decided by a Division Bench of this Court in the common judgment and followed by the Coordinate Bench in OJC No. 3837 of 1998. Thus, according to Mr. Rath, the impugned order amounts to overreaching the specific directions of this Court which is not only impermissible but also contemptuous. Mr. Rath further argues that admittedly several teachers, who were appointed through the State Selection Board along with the petitioners and also after them have been extended the benefit without deducting five years from the date of approval of their service. As a result, the petitioners have been discriminated and also subject to humiliation as persons junior to them have been given such benefit. According to Mr. Rath, there can be no distinction between the candidates appointed by the Management and those selected by State Selection Board, as decided by this Court in the case of Ajoy Kumar Das & others vs. State of Orissa & others, W.P.(C) No.15481 of 2005. Even otherwise the amended provision i.e., sub-sections (4-a) and (4-b) of Section 7-C of the Act does not make any distinction between the teachers of Non-Government Aided Educational Institutions. Mr. Even otherwise the amended provision i.e., sub-sections (4-a) and (4-b) of Section 7-C of the Act does not make any distinction between the teachers of Non-Government Aided Educational Institutions. Mr. Rath has also drawn attention of this Court to Rule-9(1) of Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short 1974 Rules') which provides for parity of salary and other allowances of teachers of non-government aided educational institutions with their counterparts in the State Government. Thus, Mr. Rath submits, the impugned order cannot be sustained in the eye of law in any manner. 6. Mr. Pattnaik, learned Addl. Government Advocate on the other hand submits that in the impugned order the Commissioner-cum-Secretary has distinguished between the lis involved in the common judgment and the present case, which is the correctness of deduction of five years of service for the purpose of availing the benefits of Career Advancement. Mr. Pattnaik would further argue that the reasoning adopted by the Commissioner-cum-Secretary is entirely in consonance with the amended provisions of Section 7-C of the Act and therefore, the impugned judgment warrants no interference. Since the provisions of Sub-Section (4-a) and (4-b) have been made retrospectively operative from 01.01.1986, the ratio decided as per the common judgment would no longer apply. He submits, statutory provision shall have an ordinary effect notwithstanding any judgment. 7. Reference to the common judgment passed by a Division Bench of this Court in OJC No. 4912/93, 4935/93 and 4906/93 on 13.12.1996 reveals that after analysing the relevant circulars and the provisions of law, it was held that the decision to compute the qualifying service from the date of receipt of grant-in-aid towards salary cost is bad in law. Accordingly the authorities were directed to compute the period of 8 years for qualifying service from the date of appointments as approved by the competent authority. Accordingly, the explanation appended to resolution dated 13.03.1990 was declared invalid/inoperative in the eye of law. Accordingly the authorities were directed to compute the period of 8 years for qualifying service from the date of appointments as approved by the competent authority. Accordingly, the explanation appended to resolution dated 13.03.1990 was declared invalid/inoperative in the eye of law. In the subsequent writ application filed by the petitioners with other similarly situated lecturers i.e., OJC No. 3837 of 1998, the Coordinate Bench of this Court by order dated 17.01.2019 took note of the common judgment passed by the Division Bench as also the fact of dismissal of the SLP filed by the State challenging the same and was thus persuaded to apply the ratio of the common judgment and directed the opposite parties to consider and decide the claim accordingly. 8. In the batch of cases, i.e. OJC Nos. 4912 of 1993, 4935 of 1993 and 4906 of 1993, the Division Bench of this Court passed a common judgment inter alia holding as follows: '10. The petitioners have challenged the impugned resolution of the Government dated 19.3.1990 yet on another ground. It is urged on their behalf that if the said Explanation is given effect to and career advancement is released to the incumbent from the date from which the teacher has been admitted to first grant-in- aid towards his/ her salary cost, then, it would lead to anomalous position. The teachers who are appointed much later may be placed in the higher scale of pay solely on the ground that the institution where they serve received grant-in-aid earlier. The petitioners have cited several instances where such anomalies have occurred. We find enough materials to agree to this contention. We conclude therefore, that the impugned Explanation appended to the resolution dated 19.3.1990 cannot be sustained on this ground also. Therefore, taking all these matters into consideration, we are of the definite opinion that the Explanation appended to the circular dated 19.3.1990 (Annexure-5 in OJC No. 4912/93) is wholly unreasonable and as such, it cannot be given effect to It is required to be set aside as such. We are of clear opinion that the petitioners' claim for career advancement should be computed from the date when their respective appointments were approved by the competent authority. In that view of the matter, the writ applications succeed. We are of clear opinion that the petitioners' claim for career advancement should be computed from the date when their respective appointments were approved by the competent authority. In that view of the matter, the writ applications succeed. The opposite parties are directed to compute the period of 8 years in the matter of granting career advancement and other benefits from the date of appointments as approved by the competent authority and to allow them to enjoy the said scale if other conditions mentioned in the order dated 06.10.1989 particularly clause 3.7 thereof are fulfilled. Further it is declared that the Explanation' appended to the resolution dated 19.3.1990 is invalid/inoperative in the eye of law so far as it defines the meaning of the words 'regular appointment. ' [Emphasis added] In their earlier approach to this Court i.e. in OJC No. 3837 of 1998, a coordinate Bench of this Court referred to the aforesaid finding of the Division Bench in the common judgment and accordingly directed the opposite parties to consider and decide the claim of the petitioners in terms of the said judgment. 9. Reading of the impugned order would reveal that the Secretary has referred to the amended provision and its retrospective operation from 01.01.1986 to hold that the petitioners' claim of not deducting five years of initial service for the purpose of availing grant-in-aid as per UGC scale of pay under career advancement scheme is not sustainable. It therefore, becomes necessary to refer to said provision. By Orissa Education (Amendment) Act, 1998, Section 7-C of the Orissa Education Act, 1969 was amended to insert the following two provisions, i.e., sub-section (4-a) and (4-b). "(4-a) The grant-in-aid to be borne by the State Government on account of placement of a teacher in an aided educational institution receiving University Grants Commission scales of pay under the Career Advancement Scheme, shall be limited to the extent as may be admissible by computing the period of service rendered by him against an approved post with effect from the date of completion of five years of service against such approved post: Provided that nothing in this sub-section shall be construed as to effect the seniority or any other conditions of service of such a teacher. (4-b) Notwithstanding anything contained in any judgment, decree or order of any Court to the contrary, any instructions issued, actions taken, or things done on or after the 1st day of January, 1986 in regard to matters provided in sub-section 4-a) shall be deemed to have been validly issued, taken, or done as if the said sub-section were in force at all material points of time.' [Emphasis added] 10. A plain reading of the amended provision makes it clear that the same does not permit any kind of distinction between the teachers of aided educational institutions. This is highly significant in view of the admitted fact that several teachers of non-government aided educational institutions appointed through the State Selection Board have been granted benefit from the date of their appointment without deducting five years of service. Such benefit was granted to these teaches ostensibly on the ground that they were in respect of full grant-in-aid from the date of their joining and therefore, there is no occasion to deduct five years of service for the purpose of career advancement. The above reasoning is unacceptable for the reason that there can be no distinction between the teachers of aided educational institution as has been held by this Court in the case of Ajoy Kumar Das (supra). 11. Furthermore, when the amended provision of sub-Section (4-a) itself does not make an distinction between teachers appointed to non-government educational institutions through different sources, it is obviously not open to the authorities to unilaterally do the same as it would run entirely contrary not only to the settled position of law but also the statute and therefore, unconscionable. If the interpretation made by the authorities is to be accepted it would result in creating a class within a class, which again is not permissible in the eye of law as it would amount to discrimination. In other words, the Government cannot make a differential treatment for one set of employees as against another set, who are equally placed. It would be apposite at this stage to refer to the law relating to discrimination. It has been held that equality is the basic feature of the Constitution. The contents of the Article 14 of the Constitution have been expanded conceptually so as to comprehend non-arbitrariness. It would be apposite at this stage to refer to the law relating to discrimination. It has been held that equality is the basic feature of the Constitution. The contents of the Article 14 of the Constitution have been expanded conceptually so as to comprehend non-arbitrariness. Article-14 of the Constitution only permits classification on legally valid grounds where two categories from different classes cannot be held to be similarly situated. Such is not the case here as discussed hereinbefore. It is also well settled that discrimination means an unjust, unfair action in favour of one against another. It involves an element of intentional and purposeful differentiation and further an element of un-favourable bias; an unfair classification. Reference may be had to the judgments of the Supreme Court in the case of Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 and M/s. Video Electronics Pvt. Ltd., and another v. State of Punjab and another, AIR 1990 SC 820 . 12. Thus, the settled position of law is, the State cannot selectively apply a particular law by making it enforceable against one set of employees and relaxing the provisions in respect of another set of employees as has been done in the present case. It goes without saying that the statutory provision, as it stands, ought to be applied to all persons situate equally without any discrimination as otherwise it would amount to an infringement of the fundamental right of equality enshrined under Article 14 of the Constitution of India. The argument of learned State Counsel that the amended provision has not been challenged as such therefore, holds no water in view of the above discussion. 13. It is also relevant to note that a coordinate Bench of this Court dealing with an identical matter in the case of Sanjib Kumar Mohanty vs. State of Orissa & Ors., W.P.(C) No. 14451 of 2016, decided on 06.03.2024 has taken similar view. 14. Thus, from a conspectus of the analysis of facts and law made hereinbefore, this Court has no hesitation in holding that the impugned order under Annexure-3 cannot be sustained in the eye of law and therefore, warrants interference. 15. Resultantly, the writ petition is allowed. The impugned order under Annexure-3 is hereby quashed. 14. Thus, from a conspectus of the analysis of facts and law made hereinbefore, this Court has no hesitation in holding that the impugned order under Annexure-3 cannot be sustained in the eye of law and therefore, warrants interference. 15. Resultantly, the writ petition is allowed. The impugned order under Annexure-3 is hereby quashed. The opposite party authorities, particularly, opposite party no.1 is directed to pass necessary order to extend the benefit of career advancement scale of pay in favour of the petitioners by computing the same from the approved dates of their appointments without deducting five years from such date. Since the benefits have already been granted by deducting five years from the date of receipt of grant-in-aid, the dues admissible without deducting five years from the date of receipt of grant-in-aid shall be paid to the petitioners as early as possible, preferably within a period of three months from the date of production of certified copy of this order.