Orissa High Court
Sadananda Sahu & Others vs State Of Odisha & Others ... Opp. Parties on 28 June, 2018
Equivalent citations: AIRONLINE 2018 ORI 448
HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.11200 of 2016
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
---------------
Sadananda Sahu & others ... Petitioners
-Versus-
State of Odisha & others ... Opp. Parties
For Petitioners : M/s. G.A.R. Dora, G. R. Dora,
J.K. Lenka & P. Tripathy
For Opp. Parties : Mr. P.C. Panda,
Additional Government Advocate
(For Opposite Party Nos.1 and 2)
M/s. P. K. Parhi and D. Gochhayat
(For Opposite Party No.3)
PRESENT:
THE HON'BLE DR. JUSTICE D.P. CHOUDHURY
_______________________________________________________
Date of hearing: 20.06.2018 Date of Judgment: 28.06.2018
___________________________________________________
Dr. D.P. Choudhury, J. Challenge has been made to the inaction of the
opposite parties for not releasing the arrear salary of the petitioners
for the period from 01.04.1994 to 02.09.2013.
2. The factual matrix leading to filing of the writ petition is
that the petitioners are teaching and non-teaching staff of Jyoti Vihar
High School now upgraded as Higher Secondary School (Junior
College) under the Sambalpur University (hereinafter called as "the
2
University"). The upgradation of the High School was made in 1988
after which the petitioners have joined the services. They all have
joined between 1988 to 1993. In spite of the upgradation, the
petitioners were not paid their salary and allowances at par with their
counterparts in Government and non-Government aided educational
institutions for which they filed OJC No.10410 of 2000 praying inter
alia therein for issue of Writ of Mandamus to the opposite parties to
declare them as the employees of the University and to grant full
salary and other allowances including retiral benefits as enjoyed by
their counterparts in Government and non-Government aided Colleges
and University with effect from 01.04.1994.
3. Be it stated that the Division Bench of this Court passed
order on 03.09.2013 in the above O.J.C. No.10410 of 2000 wherein
Their Lordships have absolutely considered the petitioners as staff of
University and accordingly asked the opposite parties to enhance the
block grant of University so as to meet the full salary cost of the
petitioners at par with their counterparts working in the Government
aided educational institutions. Since the block grant was enhanced, the
petitioners have filed contempt petition vide CONTC No.1585 of 2013
before this Court and in pursuance of the notice issued in the said
contempt petition, the State Government increased the block grant
during the supplementary budget in 2015-2016 and accordingly
payment was made to the petitioners from 03.09.2013 till 30.09.2015.
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So, having found the compliance of the order passed in earlier writ
petition, this Court dropped the contempt proceeding.
4. Be it stated that the petitioners, since had not been paid
their arrear salary for the period from 04.04.1994 to 02.09.2013, as
per the observations made by this Court in OJC No.10410 of 2000,
they have filed the present writ petition.
5. Traversing the writ petition, the opposite party no.1 has
filed counter affidavit refuting the allegations made in the writ petition.
According to the opposite party no.1, the State Government in Higher
Education Department accorded recognition to the +2 Arts and Science
Stream opened in Jyoti Vihar University Campus as Jyoti Vihar Higher
Secondary School from the academic session 1989-1990. The post
graduate teachers, who were teaching in the earlier High School were
re-designated as Lecturers and the Laboratory Assistants were re-
designated as Demonstrators. The Government in Higher Education
Department sanctioned Block grant of Rs.4,00,000/- per year from
01.04.1994 to the University towards payment to the teaching and
non-teaching staff of the said college. However, the petitioners filed
OJC No.10410 of 2000, as stated in the writ petition, to declare them
as the employees of the Sambalpur University and to grant full salary
and other allowances including retiral benefits as enjoyed by their
counterparts in Government, non-Government aided Colleges and
Universities. The opposite party no.1, in his counter affidavit, admitted
about the observations of this Court passed in the aforesaid writ
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petition to enhance the block grant of the University to meet the salary
cost of the petitioners and as per the observation, they were paid the
enhanced salary after the release of the fund under supplementary
budget for the year 2015-2016. In view of the compliance of the order
of this Court passed in OJC No.10410 of 2000, the contempt
proceeding vide CONTC No.1585 of 2013 was dropped.
6. When there is compliance of the order of this Court
passed in OJC No.10410 of 2000, the opposite party no.1 finds no
further cause of action to file this writ petition. It is also alleged inter
alia that the Department of Higher Education is no more looking after
the affairs of the +2 Junior Colleges as that has been already
transferred to the administrative control of School and Mass Education
Department and the said Department is able to answer the charges
made in the writ petitions. In toto, the opposite party no.1 claims that
there is no cause of action to file the writ petition and hence, the same
is liable to be dismissed.
7. The opposite party no.3 filed a separate counter affidavit
but the same was filed on the same line of counter filed by opposite
party no.1. According to opposite party no.3, as per the order passed
by this Court in OJC No.10410 of 2000, the block grant has been
enhanced under Demand No.38 of the Higher Education Department.
Here, this opposite party has taken a specific plea that the block grant
has been enhanced for the University but that does not mean that the
petitioners are to take benefit out of that because the petitioners are
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not treated as employees of Sambalpur University. As per the
averment made in the counter affidavit of opposite party no.3, on
6.1.1994, the University decided to take over the management of the
Jyoti Vihar Secondary school but later-on on 8.3.1995, the said
notification was kept in abeyance. Since the earlier order of this Court
is not specific for the relief asked for, the prayer of the petitioners sans
merit. So, the same should be dismissed.
SUBMISSIONS
8. Mr. G.A.R. Dora, learned Senior Advocate for the
petitioners submitted that the petitioners, being the teaching and non-
teaching staff of the school in question, are entitled to pay and
allowances as available to the aided and non-aided colleges to the
University employees because of the declaration made by this Court in
OJC No.10410 of 2000. He drew attention of this Court to paragraphs-
14 to 17 of the said order wherein this Court observed that as the
Syndicate of the University took a decision on 16.11.1993 to take over
the charge of the management of the petitioners' school and the same
has been acted upon, the benefits should be given to the petitioners
accordingly. Therefore, the block grant should be increased by the
opposite parties to pay the arrears of the petitioners.
9. Mr. G.A.R. Dora, learned Senior Advocate for the
petitioners further submitted that since the order of this Court passed
in OJC No.10410 of 2000 was not complied, the petitioners have filed
CONTC No.1585 of 2013 and that matter was disposed of with the
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observation that there is compliance of the order passed by this Court
in the earlier writ petition. Since the petitioners having worked but not
getting their salary as per their entitlement and that matter has
already been disposed of by a Division Bench of this Court with
appropriate observation, necessary directions may be issued to the
opposite parties to pay the arrear dues of the petitioners for the period
in question. In support of his submission, Mr.Dora, learned Counsel for
the petitioners relied upon the judgment of this Court in the case of
Mrs. Daulen Baxla and others -V- Union of India and others
(W.P.(C) No.8205 of 2017 disposed of on 10.01.2018) and
submitted to award upgraded pay and other financial benefits to the
petitioners. Accordingly, he submitted that the claim of the petitioners
from 01.04.1994 to 02.09.2013 cannot be said to be perverse or
imaginary. So, he prayed to allow the writ petition.
10. Mr. P.C. Panda, learned Additional Government Advocate,
without disputing the facts, submitted that the order of this Court in
OJC No.10410 of 2000 was passed on 03.09.2013 wherein the final
order was passed by directing the State Government to take a decision
with regard to enhancement of block grant of Sambalpur University to
pay the full salary cost of the employees of the Jyoti Vihar Secondary
school at par with their counterparts working in the Government and
aided educational institutions. Of course, the petitioners, showing non-
compliance of the order passed in OJC No.10410 of 2000, filed CONTC
No.1585 of 2013 and a Division Bench of this Court in that CONTC,
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realized that the order of this Court has already been complied for
which Their Lordships dropped the contempt proceeding. He also does
not dispute the order passed by this Court in OJC No.10410 of 2000
and CONTC No.1585 of 2013. According to him, as per the order of
this Court, salary of the employees of the Jyoti Vihar Secondary School
has been enhanced and compliance report has been submitted to the
Court. Finding compliance of the order of this Court, this Court
dropped the contempt proceeding. Since the proceeding has been
dropped, there cannot be any denial to the compliance of the order of
this Court. In support of his submissions, Mr.Panda, learned Additional
Government Advocate cited the decision of the Hon'ble Supreme Court
in the case of Union of India and others -V- Tarsem Singh;
(2008) 8 SCC 648 and submitted that delayed claim should not be
entertained because the arrears are restricted to be claimed within
three years prior to filing of the present writ petition. So, he submitted
to dismiss the writ petition.
11. Learned counsel for the opposite party No.3 submitted
that the University has nothing to do anything more than to go by the
instruction of the Government. If the Government would increase the
budget, the opposite party no.3 would be able to maintain the
institution of the petitioners. If the Government would sanction the
fund to meet the burden, the opposite party no.3 would certainly carry
out the instruction and make payment of the same to the petitioners.
As the State Government is silent after filing the counter, the
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petitioners and opposite party no.3 have nothing to do. On the other
hand, the payment has been made as per the order of this Court and
as such, no further cause of action arises for filing the present.
12. POINT FOR DETERMINATION:
i) The only point emerges in this case as to whether the
petitioners, who are teaching and non-teaching employees of Jyoti
Vihar Secondary School are entitled to grant-in-aid with effect from
01.04.1994 to 02.09.2013.
DISCUSSIONS
13. It is not in dispute that the petitioners are the teaching
and non-teaching staff of Jyoti Vihar Secondary School of Sambalpur
University. It is also admitted fact that the petitioners were not
accepted as University employees and not giving the arrear salary
from 1994, the petitioners have filed a writ petition bearing O.J.C.
No.10410 of 2000 before this Court to declare them as the employees
of the Sambalpur University and to grant full salary and other
allowances including retiral benefits as enjoyed by their counterparts in
Government, non-Government aided Colleges and University w.e.f.
01.04.1994 and same has been disposed of. It is not in dispute that
due to non-compliance of the order passed in O.J.C. No.10410 of
2000, a contempt petition bearing CONTC No.1585 of 2013 was filed
and the contempt petition was dropped.
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14. It is relevant to note the observations of the Division
Bench at paragraphs-13, 14, 15, 16 and 17 passed in O.J.C. No.10410
of 2000 which is quoted herein below:
"13. One thing is crystal clear that pursuant to the
direction of the State Government to take steps to open
vocational stream in the camps High School Jyoti Vihar
for upgradation to a vocational Higher Secondary School
under the New Education Policy, the University opened
+2 wing in the existing High School. Necessary
concurrence was given by the State of Orissa and the
Junior College was affiliated to the CHSE. The
Government have also exempted the University from
depositing Rs.1.25 lakhs with the CHSE towards
affiliation.
14. We also find that the Syndicate took a decision on
16.11.1993 to take over the management of Jyoti Vihar
Higher Secondary School from 1.9.1993. The Syndicate
further resolved that the staff of the School will be
allowed admissible scales of pay with all benefits as
admissible to the University employees subject to
eligibility and requisite qualification as per norms
prescribed by the Government w.e.f. 1.9.1993 and they
will be allowed to draw salary in the admissible scales of
pay only after receipt of grants from the Government for
the purpose. The Syndicate further resolved in its
meeting held on 20.11.1999 to treat the employees of
the Secondary wing of the School as University
employees w.e.f. 30.8.1999.
15. We further find that from the date of establishment
of the High School, necessary grant was released in
favour of the School towards salary cost of its employees
and the same is being enhanced from time to time.
Though a stand has been taken by the Government that
the University was advised to manage the institution
from its own resources without posing any further
liability to Government, but then on a cursory perusal of
the counter affidavit, we find that the University
authorities pursuant to the letter under Annexure-1,
opened the Higher Secondary School and created 18
posts. We further find that the State Government being
an ideal employer was pleased to provide Rs.4 lakhs per
annum for continuance of +2 College, despite stipulation
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made in Annexure-4 as Block Grant from 1994-95 to
1998-99.
16. There is no denial to the fact that the performance
of the teachers of the +2 is exemplary and by their hard
work, the students performed well in the examination.
There is also no denial of the fact that the teachers are
qualified to hold the posts.
In view of the specific stand taken by the State in its
counter affidavit in paragraph 5 that the Government
have accorded necessary permission to establish the +2
wing and whereafter the University has created posts,
and that the block grant has been increased from time to
time, there is no justification on the part of the
Government not to increase the block grant so as to
meet the salary cost of the petitioners.
17. In view of the discussions made in the precedent
paragraphs, we direct the opp. party no.3-State of Orissa
to take a decision with regard to enhancement of block
grant of the Sambalpur University so as to meet the full
salary cost of the employees of Jyoti Vihar Secondary
School at par with their counterparts working in the
Govt./aided educational institutions. Such decision shall
be taken within a period of two months from today,
keeping in view the observation made above."
15. The aforesaid observation of the Division Bench shows
that there is already resolution of the Syndicate of the Sambalpur
University to show that the School has been upgraded to Secondary
School from 1.9.1993 and staff of the School are allowed admissible
scales of pay with all benefits as admissible to the University
employees subject to eligibility and requisite qualification as per norms
prescribed by the Government with effect from 1.9.1993 and they are
allowed to draw salary in the admissible scales of pay only after receipt
of grants from the Government for the purpose. Accordingly the
University has already taken decision and created 18 posts. Not only
this but also the State Government has been pleased to provide Rs.4
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lakhs per annum for continuance of +2 College. Since the State
Government in its counter affidavit of the said writ application have
accorded necessary permission to establish the +2 wing, the Court
directed the State Government to take a decision with regard to
enhancement of block grant of the Sambalpur University so as to meet
the full salary cost of the employees of the School at par with their
counterparts working in the Government/aided educational
institutions. The observation of the Court is passed affirmatively to
show that the petitioners are the employees of the University and their
salary is to be computed at par with the employees working in
Government/aided educational institutions. The said decision has
neither been reviewed nor challenged before the Hon'ble Supreme
Court. Hence, the decision is reached finality.
16. The plea taken by the opposite party No.3 that after the
decision taken by the Syndicate and proposal sent to Government for
approval in 1994 till the approval comes, the decision of the Syndicate
was kept in abeyance. But as it appears from the aforesaid decision of
the Division Bench that Government has already accepted the
petitioners as the employees of the University and issued block grant
to meet the contingency, the conduct of the University and the State
Government cannot rewind the clock anti clockwise. Not only this but
also Annexure-2 series show that on 13.11.2015 the State
Government in obedience to the aforesaid order of this Court directed
the Vice-Chancellor, Sambalpur University-opposite party No.3 to pay
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the salary to the employees including the petitioners at par with the
employees working in Government/Aided educational institutions and
for that asked the University to make the proposal for enhancement of
the block grant. It is relevant to quote a para from that letter:
"As regards the enhancement of Block Grant for
this purpose, it is to be clarified that during this
financial year, the Block Grant for Sambalpur
University has been enhanced by Rs.3,06,51,000/- i.e.
from Rs.37,61,51,000/- to Rs.40,68,01,000/-.
Besides, proposal has also been submitted to Finance
Department for giving an additional Block Grant of
Rs.13,49,89,000/- to your University during this
current financial year. As such, the additional financial
burden accruing due to payment of this enhanced
salary to the employees of your Secondary School/+2
College can be very well accommodated within this
Block Grant."
17. The aforesaid para of the State Government is clear to
show that for payment of enhanced salary of the concerned School of
the University/+2 College additional block grant was paid in that year
2015-2016 to obey the order of this Court. Not only this but also it
appears that the proposal has been also given on 10.11.2015 for
payment of salary to the employees of the Jyoti Vihar Junior College
from September 2013 to September 2015. On 16.11.2015 the
payment also has been made to the petitioners.
18. The plea taken by the opposite parties is that as the order
of this Court passed by the Division Bench in O.J.C. No.10410 of 2000
has been already complied, the CONTC No.1585 of 2013 was dropped.
Now it is necessary to go through the order passed in CONTC No.1585
of 2013. On perusal of the entire order it shows that this Court in
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contempt petition has mainly focused on the operative portion of the
order passed in the writ petition and finally passed the order at
paragraphs-8 and 9 while dropping the contempt proceeding:
"8. ........ While submitting the above, the affidavit
also appended a statement of arrears as per enhanced
salary and the acknowledgement of receipt of cheque
thereof. From the whole reading of the above, it
clearly appears that the order of this Court passed in
O.J.C.No.10410 of 2000 has already been complied
with by the opposite parties to the contempt petition.
9. Under the circumstances, this Court finds
that the petitioners have failed in making out a case
for initiation of contempt proceeding against the
opposite parties. Consequently, while dismissing the
contempt petition but considering the allegation of the
petitioners that there still remains some dispute in
between the petitioners and the University authority
unresolved, permission is accorded to the petitioners
to raise such issues in an appropriate forum for
ventilating their grievances."
19. The aforesaid order shows that since block grant has been
enhanced in pursuance of the order passed by this Court in O.J.C.
No.10410 of 2000, the contempt petition was dismissed but allowed
the petitioners to raise any such issues subsequently if remained
unresolved. So, the major compliance for the year from 2013 to 2015
by raising of block grant to pay the salary cost at par with Government
employees in aided or non-aided Colleges has been complied. But here
the issue relates to non-payment of the salary from 1994 to 2013. So,
it cannot be said that contempt proceeding has taken care of the cause
of action spelt out in this writ petition. Rather, this writ petition arises
as per the order passed in the contempt petition as the liberty has
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been given to the petitioners to raise the claim if at all remained
unsolved.
20. No doubt the Division Bench of this Court in O.J.C.
No.10410 of 2000 has amply clarified and explicitly declared that the
teaching and non-teaching staff of Jyoti Vihar Higher Secondary
School/+2 College are to be paid full salary cost of employees as their
counterparts working in the Government/aided educational institutions
and same has to be met from the block grant when they have been
treated as University employees. There is no any adverse order
against the petitioners and that order has been complied in 2015 for
the period from 2013 to 2015 for which they are paid the full salary
cost as per their counterparts in other Government/aided educational
institutions. Thus, why their similar benefit for the year from 1994 to
2014 should not be reasonably considered in view of the judgment of
this Court passed in O.J.C. No.10410 of 2000. It is clear from perusal
of the judgment of the Division Bench in O.J.C. No.10410 of 2000 that
since 6.1.1994 the Management of Jyoti Vihar Higher Secondary
School was taken over by the University. Although there is plea of the
opposite party No.3 that, that decision has been kept in abeyance by
the administrator but how far the administrator is competent to stay
the decision of the Syndicate is best known to them. It is revealed
from the material on record that on 21.12.1999 the University while
taking over the Management of the School declared the employees of
the concerned School will be treated as University employees with
15
effect from 30.8.1999. Thus, the order of keeping abeyance is no more
to stand on the way except treating the petitioners as employees of
the University. Apart from this, the State Government and University
do not deny in their counter specifically about the claim of the
petitioners that granting block grant from 1994-95 to 1998-99 and the
employees of the School are treated as University employees with
effect from 30.8.1999. When specific averments are not traversed by
the opposite parties, same is found to be proved by the petitioners.
21. As per the discussion made above, when the University
took decision to treat the petitioners as employees from 1999 there is
already block grant given from 1994-95 to 1998-99, the petitioners
claim for salary cost at par with their counterparts working in
Government and aided educational institutions will only be eligible
from 1999. This view is taken keeping in view that the employees
being engaged in the School are treated as University employees. The
provision of the Grant-in-aid Order, 1994 would hardly to apply but
they will be accommodated only by the block grant to be enhanced. It
does not mean that they are not teachers working with similarly placed
teachers before they are declared as employees of the University. In
this regard, the doctrine of equality is to be considered as per the
decision of the Hon'ble Apex Court and this Court as submitted by the
learned counsel for the petitioners.
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22. It is reported in (2015) 7 SCC 698, State of Madhya
Pradesh and others v. Mala Banerjee, where Their Lordships have
observed at para-6 in the following manner:
"6. We also find ourselves unable to agree with the
appellants' submission that this is a policy matter and,
therefore, should not be interfered with by the courts.
In Federation of Railway Officers Assn. v. Union of
India 2003 4 SCC 289, this Court has already
considered the scope of judicial review and has
enumerated that where a policy is contrary to law or is
in violation of the provisions of the Constitution or is
arbitrary or irrational, the courts must perform their
constitutional duties by striking it down. The appellants
have not been able to explain why it chose to deny
teachers the benefit of the second Kramonnati while
granting this benefit to all the other employees, thus
discriminating against them and violating their
fundamental rights enshrined in articles 14 and 16 of
the constitution. It is indeed paradoxical that teachers
who prepare persons for employment and leadership are
dealt with in a parodical attitude by the State. Further,
we reiterate that no explanation is forthcoming for
granting the second Kramonnati with effect from 1-8-
2003. This is neither the date in the original Scheme nor
justifiable on the basis of any other material available
on the record. Many employees had completed twenty-
four years of service by 1999; therefore, in postponing
their second Kramonnati by four years, the appellants
have departed from the basic object of the Scheme. The
3-9-2005 Order failed to explain the basis of this
decision, and is thus arbitrary in nature and
discriminatory towards the respondents and others in
their position."
23. With due regard to the aforesaid decision, it appears that
the policy of the Government if contrary to law or in violation of the
provisions of the Constitution or is arbitrary or irrational, the Court
must perform their constitutional duty by striking it down. It is also
reported in 2017 (8) Supreme 500; State of Punjab & others v.
Senior Vocational Staff Masters Association & others, where
17
Their Lordships have observed at paras-16, 17 and 18 in the following
manner:
"16) Further, since the very inception, the educational
qualification for appointment as Vocational Masters had
been a degree or a diploma with three years' experience
as both the qualifications were placed at par. All persons
were appointed by a common process of selection and
they teach the same classes, performing the same
work. No distinction can be brought about between the
persons so appointed. It is only subsequently that the
appellants designated some of the Vocational Masters as
Vocational Lecturers and brought about an artificial
distinction between the two. Even on account of re-
designation of the degree holders and post graduates as
vocational lecturers, there was no change in the
responsibilities and the financial matters as between the
degree holders and diploma holders before the alleged
Notification which fact is duly admitted by the State.
There is no distinction between the vocational lecturers
and vocational masters and they form one unified cadre
and class. There cannot be any discrimination between
similarly situated persons, whether by way of a
government notification or any amendment in the Rules.
As far as nature of work is concerned, it is stated that
the vocational masters are discharging their duty in the
Senior Secondary Schools in the Engineering/non-
Engineering trades and have the technical qualifications
while the vocational lecturers are also discharging the
same duties in the same schools. Both vocational
masters and lecturers are teaching the same classes,
i.e., 10+1 and 10+2 and hence the nature of work,
responsibilities and duties being identical and the pay
scales were also kept identical since 1978 onwards.
17) The principle of equality, is also fundamental in
formulation of any policy by the State and the glimpse
of the same can be found in Articles 38, 39, 39A, 43 and
46 embodied in Part IV of the Constitution of India.
These Articles of the Constitution of India mandate that
the State is under a constitutional obligation to assure a
social order providing justice-social, economic and
political, by inter alia, minimizing monetary inequalities,
and by securing the right to adequate means of
livelihood and by providing for adequate wages so as to
ensure, an appropriate standard of life, and by
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promoting economic interests of the weaker sections.
Meaning thereby, if the State is giving some economic
benefits to one class while denying the same to other
then the onus of justifying the same lies on the State
specially in the circumstances when both the classes or
group of persons were treated as same in the past by
the State. Since Vocational Masters had been drawing
same salary as Vocational Lecturers were drawing
before the application of 4th pay commission, any
attempt to curtail their salary and allowances would
amount to arbitrariness which cannot be sustained in
the eyes of law if no reasonable justification is offered
for the same.
18) We are conscious of the fact that a differential scale
on the basis of educational qualifications and the nature
of duties is permissible. However, it is equally clear to
us that if two categories of employees are treated as
equal initially, they should continue to be so treated
unless a different treatment is justified by some cogent
reasons. In a case where the nature of duties is
drastically altered, a differential scale of pay may be
justified. Similarly, if a higher qualification is prescribed
for a particular post, a higher scale of pay may be
granted. However, if the basic qualifications and the job
requirements continued to be identical as they were
initially laid down, then the Court shall be reluctant to
accept the action of the authority in according a
differential treatment unless some good reasons are
disclosed. Thus, the decisions relied upon by learned
senior counsel are clearly distinguishable and are not
applicable to the facts of the present case."
24. With due regard to the aforesaid decision, it appears that
the said decision has been also followed in Mrs. Daulen Baxla &
others v. Union of India, represented through its Secretary,
Ministry of Social Justice and Empowerment, Department of
Disability Affairs & others (W.P.(C) No.8205 of 2017, decided
on 10.01.2018), where this Court have observed at paragraph-16 in
the following manner:
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"16. With due regard to the aforesaid decision, it
appears that the principle of equality is also
fundamental in formulation of any policy by the State
and same is also required in view of the clear
provisions in Part IV of the Constitution to assure a
social order providing justice-social, economic and
political by minimizing monetary inequalities and by
securing the right to adequate means of livelihood and
standard of life, the State has got obligation to extend
same benefit to such employees who are under one
class. On the other hand, if the State is giving same
economic benefit to one class and denying the same to
other, the onus of justifying the same lies on the State
specially in the circumstance when both classes or
group of persons were treated as same by the State.
Now adverting to the present case, it appears that the
petitioners have been treated equally with other
Nursing staff of the Government of India and those
staff have already got the benefit of 6th Pay
Commission with upgraded Grade Pay with effect from
1.1.2006, there is no any justifiable reason produced
by the State to show that the petitioners were to be
given that benefit notionally from 1.1.2006. Annexure-
7 also does not explain why the decision was taken to
extend the benefit of upgradation of Grade Pay
notionally with effect from 1.1.2006."
25. The decision of the Hon'ble Apex Court and this Court are
squarely applicable to the present fact of the case. The teachers
engaged in this School have performed same job as the teachers
engaged in other Higher Secondary Schools. Similarly the non-
teaching staff engaged in this School also performing the same duty as
the employees of other Schools. So, the right to equity to be
maintained so as not to bring any discrimination to frustrate the
purview of Article 14 of the Constitution. Hence, the Division Bench
have rightly taken view that the petitioners should be paid the salary
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cost at par with the employees of the Government or aided educational
institutions.
26. The learned Additional Government Advocate submitted
that in the event they are paid salary cost for arrears from 1.4.1994
till 2013, the claim should not be allowed in view of the decision of the
Hon'ble Supreme Court passed in Union of India v. Tarsem Singh,
(2008) 8 SCC 648. In the said decision, Their Lordships observed at
paragraph-7 in the following manner:
"7. To summarise, normally, a belated service related
claim will be rejected on the ground of delay and laches
(where remedy is sought by filing a writ petition) or
limitation (where remedy is sought by an application to
the Administrative Tribunal). One of the exceptions to
the said rule is cases relating to a continuing wrong.
Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long
delay in seeking remedy, with reference to the date on
which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the
grievance is in respect of any order or administrative
decision which related to or affected several others
also, and if the re-opening of the issue would affect the
settled rights of third parties, then the claim will not be
entertained. For example, if the issue relates to
payment or re-fixation of pay or pension, relief may be
granted in spite of delay as it does not affect the rights
of third parties. But if the claim involved issues relating
to seniority or promotion etc., affecting others, delay
would render the claim stale and doctrine of
laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a past
period, the principles relating to recurring/successive
wrongs will apply. As a consequence, High Courts will
restrict the consequential relief relating to arrears
normally to a period of three years prior to the date of
filing of the writ petition."
21
27. With due regard to the aforesaid decision, it is clear that if
the issue relates to payment or refixation of pay or pension, relief may
be granted in spite of delay as it does not affect the rights of third
parties but at the same time the consequential relief of recovery of
arrears for a past period is concerned, the principles relating to
recurring/successive wrongs will apply and the High Court should
restrict the consequential relief relating to arrears normally to a period
of three years prior to the date of filing of the writ petition. But in the
instant case, the entitlement for the teaching and non-teaching staff in
the School was only decided in 2013 and further cause of action arose
in 2015 in CONTC No.1585 of 2013 when the State Government paid
only arrears from 2013 to 2015 but did not make payment for earlier
arrears. At the same time, it appears that the writ petition has been
filed in 2016. So, the principles as decided by the Hon'ble Apex Court
do not stand as a bar to relief claims in this case. Be that as it may,
the contention of the learned Additional Government Advocate does
not fetch much force to allow the relief. The point is answered
accordingly.
CONCLUSION
28. It is prayed in the writ petition to sanction and release
arrear pay with all allowances and further prayer to declare the
petitioners are entitled to retiral benefits if in the meantime they have
retired. Nothing is made in the prayer for which period of arrear salary
is asked for, but submission is made to allow same for the period from
22
01.04.1994 to 02.09.2013. It is already observed in the aforesaid para
that from 30.8.1999 the University have declared them as employees
of the University and same fact has not been transversed by the
opposite parties. So, there is no any impediment to declare that the
petitioners are employees of the University since 30.8.1999. There is
already discussion made above that the block grant has been already
made from 1994-1995 to 1998-1999. From the aforesaid discussion, it
appears that block grant has been directed to be enhanced to meet the
salary cost of the petitioners. Hence, the petitioners being treated
equally with other teachers and non-teaching staff as their
counterparts in other Government and Aided Colleges, they are
entitled to similar salary cost which would be made by way of block
grant to be enhanced and available from 30.8.1999 till 2013 and the
O.Ps. are directed to make payment as such to the petitioners within
four months. Since they are employees of the University, the normal
rule of superannuation as per Rules of Sambalpur University and retiral
benefits thereunder would apply.
The writ petition is disposed of accordingly.
..................................
Dr. D.P. Choudhury, J.
ORISSA HIGH COURT, CUTTACK Dated the 28th June, 2018/Kar 23