Orissa High Court
Basanta Kumar Mohapatra vs State Of Orissa on 28 October, 1969
Equivalent citations: AIR 1971 ORISSA 150
JUDGMENT K.N. Misra, J.
1. The Orissa States except Mayurbhani merged with the Province of Orissa with effect from 1-1-48. Along with such merger the High Schools within the merged territories which were full-fledged and which were actually sending candidates for the Matriculation examination by then were classified as 'A' type and those High Schools which were not complete and full-fledged on the date of merger were broadly classified as 'B' type.
The merger of the States with the Province of Orissa was an Act of State. The services of the teachers in the High Schools in the merged territories and the conditions of their services were to be what the new Government ordained them to be by a process of recognition.
2. On 5-1-49, the Government of Orissa in the Education Department issued a letter to the Director of Public Instruction on the subject. The relevant portion thereof is extracted below:--
"In the States the High Schools other than those at District Headquarters mentioned above will be of two types. The complete High Schools will be 'A' type High Schools and the incomplete High Schools 'B' type High Schools, The 'A' type schools will be similar to Government High Schools other than those at District Headquarters. The services of the staff of such High Schools will be pensionable and transferable and the teachers will get pay and dearness allowances at the rates prescribed for the Government servants. Government will bear the whole of the recurring and nonrecurring costs.
'B' type High Schools will be Government managed. The staff will get pay and dearness allowance at rates prescribed for Government servants. The Headmasters of those schools will be in the upper division of the S.E.S. The services of those teachers will not be pensionable. They will have the benefits of the Contributory Provident Fund to which Government will contribute at the rate of Re. -/1/- in the rupee of the salary. As regards recurring expenses of those schools Government will meet the difference between the standard cost and income from fees and other local subscriptions. As regards non-recurring expenditure Government will meet two-thirds of the cost.
The standard cost for the 'B' type Government managed High Schools will consist of the following items:--
(a) ......
(b) The total contribution on Provident Fund deposited at the rate of Re. -/1/- in the rupee, and
(c) .......
The Inspector of Schools will be the managing agent on behalf of the Government and the Headmaster will be the correspondent of a 'B' type Government managed High School."
3. The petitioner before us in this writ application under Article 226 of the Constitution is a teacher who was for the first time appointed admittedly in a 'B' type High School by the Inspector of Schools by his order dated 15-6-53. The order of appointment is as follows:
"Shri Basant Kumar Mohapatra, B.A., an outsider, is appointed temporarily to act as an assistant teacher in the Subordinate Educational Service in the Mahendra High School, Athmallik (District Dhenkanal) on Rs. 70 per month in the scale of Rs. 70--2---74--3--98--4--110--EB--5--140 plus admissible dearness allowance with effect from the 1st July, 1953, or a subsequent date on which he joins the appointment. . . . ."
The petitioner was transferred from one 'B' type High School to another, but con firmed as a teacher in a 'B' type High School The Contributory Provident Fund scheme indicated in the Government order of 5-1-49 was never given effect to. On the other hand, from time to tune representations were held out by Government and its officers that pensionary benefit would be given to these teachers of 'B' type High Schools either from the date of merger or from the date of employment if it was subsequent to the date of merger.
Ultimately, on 1-8-64, Government came forward with a rationalisation scheme which we shall have occasion to deal with subsequently in this judgment. The terms of the said rationalisation scheme are very prejudicial as it is contended, to the teachers of the 'B' type High Schools including the petitioner, and the petitioner being aggrieved by such terms moved Government for its modification and having failed to obtain any relief in spite of his representation and the reminders sent subsequently has approached this Court under Article 226 of the Constitution asking us to issue a direction to the State Government to modify the scheme of rationalisation dated 1-8-64 so that the petitioner's past service may be reckoned for his seniority and for granting him pensionary benefits with effect from the date of his joining service.
4. The State Government had filed a counter-affidavit earlier, but as it was not adequate and did not answer pointedly the question raised in the writ application, we called upon the opposite party to file a further affidavit. The Under-Secretary in the Department of Education thereupon filed an affidavit on 23-9-69 wherein it was mainly contended that the teachers in 'B' type High Schools were employees of the institutions and not under Government, and as such until such teachers came into the fold of Government service, the question of granting them pension would not arise. Similarly, there can be no claim for seniority by reckoning the past service in the several independent institutions.
It is contended that the Inspector of Schools was only an agent of Government, but the management of the school was not taken over by the State. Even while appointing the petitioner if the Inspector of Schools has said that he was appointed to the Subordinate Educational Service, the said order of appointment would be wholly inappropriate and the petitioner cannot thereby become an employee of the State of Orissa. The order of appointment categorically shows that he was appointed to a 'B' type High School which, in terms of the Government order of 5-1-49, is not a Government School
5. In view of the fact that the petitioner was not in service at the time of merger and came to be first appointed in 1953 as indicated above, it is not necessary to examine the various considerations which would arise on the principles of Act of State. The petitioner was admittedly appointed by the agent of the State Government to a post of assistant teacher in a 'B' type High School. The terms of service in a 'B' type High School are well indicated in the order dated 5-1-49. The petitioner cannot, therefore, claim anything more than what is indicated in the said Government order until Government changed the status of the school and gave any new terms of service.
6. The relevant portion of the scheme of 1964 is to the following effect:
"No. 18027-E Government of Orissa, Education Department, Resolution, the 1st Aug., 1964.
Sub.:-- Rationalisation of High Schools in the State.
Government have under their own management quite a few type of High Schools in which conditions of service of the employees vary category to category. This ununiformity in the patterns and in the conditions of service has not only evoked public criticism but also created certain administrative difficulties and tends to lowering of standards in the institutions. It is for these reasons that Government had for some time past under their consideration the question of rationalisation of the following different types of High Schools in the State whose number is noted against each.
1. Zilla Schools
-18
2. 'A' type Govt High Schools
-52
3. 'B' type High Schools
-22
4. Ex. District Board H. School
-17
5. Ex. Anchal High Schools
-6
Total
-115
After careful consideration Government have now decided that the five types of High Schools mentioned above should be converted into a single type of Govt. school with effect from 1st June, 1964.
Since the employees of the 'B' type High Schools are in receipt of pay and allowances on the scales applicable to Government servants the question of fixation of their pay and allowance does not arise. They will continue to draw their salary that they are drawing on the date of conversion.
In respect of the incumbents of 'B' type High Schools who are governed by the contributory provident fund rules, their subscriptions, if any, in the fund together with the Government contribution on the date of conversion may either be refunded to them or be credited to the General Provident Fund account to be opened afresh according to their option and all the employees may be brought under the Orissa General Provident Fund Rules. After conversion Government shall not contribute anything towards the Employee's Contributory Provident Fund. All the employees of 'B' type High Schools will be brought over to pensionable service from the date of conversion of the schools into Government Schools. x x x x The seniority of the 'B' type, Ex.
District Board and Ex-Anchal Schools as among themselves will be determined by their length of continuous service in their respective cadres in the old schools. But for the purpose of reckoning their seniority in Government service, their services will be counted from the date of conver sion of the schools into Government Schools.
X X X X"
7. In the rationalisation scheme introduced on 1-8-64. as extracted above, the petitioner's status was changed to that of a Government employee and all other advantages available to Government servants have been extended to him. In the process of rationalisation, that is, taking over of the 'B' type High Schools directly under Government past service in the different High Schools, of a teacher have not been taken into account either for seniority or for the purposes of pension. The petitioner cannot make a grievance that these benefits have not been extended to him in view of the fact that it is still open to the petitioner either to accept the scheme of rationalisation and join service under the State or go out of the service and never get into the Government employment. Government service brings in certain advantages and along with it in the scheme of rationalisation certain disadvantages are bound to come. The scheme has to be considered as a whole--conferring benefits and bringing in disadvantages as well. The net effect has to be seen and unless the petitioner has any existing right which is being taken away, he cannot make a grievance merely on the score that his past services have not been taken into account for the purposes of pension and seniority.
8. Mr. Murty, appearing for the petitioner, contended that the order of appointment shows that he has been appointed to a Government post. We have already indicated above that the status of the Inspector was that of an agent in respect of 'B' type High Schools and it was not open to him to appoint the petitioner in a 'B' type High School giving him the status of a Government employee. By 1953, confusion seems to have prevailed about the status of the 'B' type High Schools and under some mistaken impression or confusion, the order of appointment in question seems to have been issued. But on the admitted position that the petitioner was appointed in a 'B' type High School, it must be held that the petitioner was never a member of the Subordinate Educational Service and as a matter of fact has never been treated as such even after his appointment.
9. Mr. Murty next contended that the scheme of rationalisation is really irrational inasmuch as it deprives the petitioner of a vested right, that is, the counting of past services for seniority and other service advantages. As we have already indicated above, it is not open to the petitioner to resist the rationalisation scheme on this score as his being in some advantages as well as certain disadvantages. He is now being conferred security of service, right of pension and all other advantages to which a Government employee is entitled. These advantages admittedly the petitioner never had in the past. It is nobody's case that the petitioner is being compelled to accept his service under the scheme of rationalisation. If it is not suitable to him it is open to him not to continue in his employment. Therefore, we cannot accept Mr. Murty's contention on this score. Teachers of 'B' type High Schools are a classification by themselves and all, of them seem to have been equally treated under the scheme.
10. Mr. Murty raised a further contention to the effect that there should have been a reservation in the new scheme of 1964 that recruitment to the posts of Headmasters of the 'B' type High Schools would be made out of teachers of 'B' type High Schools. The scheme seeks to remove all distinctions in 1964 and it cannot be said that in not making such reservation, an existing right of the petitioner is taken away. We are not prepared to hold that the petitioner's grievances on these scores can bring him any relief.
11. One aspect of the matter, however, has given us some concern and we cannot close this case without adverting to it. In 1949 itself, a Contributory Provident Fund scheme was provided for in the letter of 5-1-49. As it transpires from two letters placed on record, one of 1952 and the other of 1958, attempts were made on behalf of teachers of 'B' type High Schools to take advantage of the Contributory Provident Fund scheme and they were told by the office of the Accountant General of Orissa that Government have not yet finalised the scheme and as such benefit of Contributory Provident Fund cannot be granted to them. We have a letter of 3-1-61 on record which goes to show that the Inspector of Schools of Dhenkanal-Keonjhar Circle informed all Headmasters of 'B' type High School that it has been tentatively decided to convert all 'B' type schools to 'A' type ones from 1-1-48. Though benefit of Contributory Provident Fund was available to these teachers, they have been kept out of it on account of inaction of Government. Therefore, while the petitioner and similarly situated teachers of 'B' type High Schools may not be lawfully entitled to lay claim to the benefit of pension on the basis of their past service or to seniority by counting their entire period of service even before 1-8-64, it cannot be disputed that they were entitled to the benefit of Contributory Provident Fund from the dates of their service after the date of merger in terms of the Government order contained in the letter of 5-1-49-. There is enough material on record to show, as we have already indicated, that the teachers were anxious to take advantage of the benefit of Contributory Provident Fund, but they were kept out of it on account of indifference and callousness of Government to extend such benefit to them by not finalising the scheme.
12. It may be difficult now for the low-paid teachers to contribute their share for the Provident Fund for the entire period upto 1-8-64. But it is equally inappropriate for the Government not to take their own order of 5-1-49 into account and also take into consideration their failure to finalise the scheme as a result of which the teachers of 'B' type High Schools could not participate in the Contributory Provident Fund scheme. We are satisfied that he has a legitimate grievance on this score, but we leave it to Government to take this aspect into account and consider in what way the teacher can be given either the advantage of Contributory Provident Fund for the past period upto 1-8-64 from the date of his employment in 1953 or some substitute process by which some other advantage in lieu of Contributory Provident Fund can be given to him. A benefit to the teacher would have directly arisen out of the contribution to the Provident Fund by Government from which he has been deprived. We sincerely hope that Government would take this aspect into account and tnougn we have withheld relief to the petitioner for the reasons which we have recorded, Government may not take the matter as a closed chapter on account of our refusing relief to the petitioner.
13. In the circumstances, we re-Sect the writ application and hold that the petitioner is not entitled to the reliefs prayed for therein. The writ application is accordingly dismissed. We. however, do not make any order as to costs, G.K. Misra, C.J.
14. I agree.