Orissa High Court
Swarna Manjari Patnaik vs State Of Odisha on 13 May, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.12791 of 2014
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Swarna Manjari Patnaik Aged about 60 years Wife of Jiban Kumar Das retired Lecturer of College of Accountancy and Management Studies At: Satichoura Chhak, P.O.: Kafla District: Cuttack ... Petitioner.
-VERSUS-
1. State of Odisha represented through its Secretary Department of Higher Education, Odisha Lok Seva Bhawan, Secretariat, Bhubaneswar District: Khordha.
2. Director of Public Instructions Higher Education At/P.O.: Bhubaneswar District: Khordha ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Srikar Kumar Rath, Ms. Mamata Behera and Mr. Akash Choudhury, Advocates W.P.(C) No.12791 of 2014 Page 1 of 20 For the Opposite parties : Mr. Rabi Narayan Mishra, Additional Government Advocate P R E S E N T:
HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing : 26.02.2024 :: Date of Judgment : 13.05.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Invoking provisions of extraordinary jurisdiction of this Court to exercise judicial review under Article 226/227, the petitioner questioned the legality and propriety of Order dated 03.06.2014 of the Odisha Administrative Tribunal, Cuttack Bench, Cuttack passed in O.A. No.414 (C) of 2000, and prayed for grant of the following relief(s):
"It is therefore, prayed this Hon'ble Court may graciously be pleased to issue Rule Nisi to the opposite parties and if the opposite parties will fail to show cause or shown insufficient cause, made the said Rule absolute by directing them to grant the benefit under the Career Advancement Scheme, i.e., to grant Senior Lecturer's scale with effect from 31.07.1987 and Reader's scale with effect from 31.07.1995 W.P.(C) No.12791 of 2014 Page 2 of 20 And further pleased to quash the impugned judgment under Annexure-4, And may pass any other order/orders ad deem fit and proper to the fact and circumstances of this Hon'ble Court.
And for this act of kindness, the petitioner as in duty bound shall ever pray."
THE FACTS:
2. The facts adumbrated by the petitioner so far as relevant for the present purpose are narrated herein.
2.1. The petitioner, being qualified Master of Arts in Statistics, was appointed as a Lecturer, Class-II, in the College of Accountancy and Management Studies, Cuttack (for convenience referred to as "CAMS"), which was later renamed as "Institute of Management & Information Technology", vide Letter dated 31.07.1979 with the Scale of Pay of Rs.525/- - Rs.1150/- per month.
2.2. The CAMS, functioning under the administrative control of Industries Department, was transferred to the Education and Youth Service Department, vide Resolution No.5453-I, dated 02.03.1982 of the Government of Odisha in Industries Department.
Subsequently, it is now under the Higher Education Department.
2.3. The State Government have decided to extend the University Grants Commission (for brevity, "UGC") Scale W.P.(C) No.12791 of 2014 Page 3 of 20 of Pay to the College teachers with effect from 01.01.1974 vide Education and Youth Services Department Resolution No.32737/EYS, dated 30.09.1977. Accordingly pay scales were notified under the Odisha Revised Scale of Pay (for College Teachers) Rules, 1978.
2.4. The Scale of Pay of the petitioner, Lecturer in CAMS, was revised in the year 1986 and the UGC Scale of Pay was accorded to her.
2.5. The UGC introduced a Scheme known as "Career Advancement Scheme" (for short, "CAS"), which was implemented by the Government vide Resolution of the Education and Youth Services Resolution No.44032-- IVE/N-15/89 (pt)/EYS, dated 06.10.1989, whereby the Scheme was extended to all categories of full time teachers working in all the affiliated Government Colleges and Aided Non-Government Colleges, either covered or eligible to be covered under the Direct Payment Scheme till 01.04.1989. The said Scheme was also extended to full time eligible teachers working in the CAMS, Cuttack.
2.6. The CAS stipulated that a Lecturer who has completed 8 years of service will get Senior Lecturer's Scale and on completion of 16 years, a Senior Lecturer would get Reader's Scale. Consequently, the Scale of Pay has been revised with effect from 01.01.1986.
W.P.(C) No.12791 of 2014 Page 4 of 202.7. The petitioner, Lecturer in the CAMS, claims to be eligible to get the benefit of the CAS, i.e., on completion of 8 years of service, in the year 1987, the Senior Lecturer's Scale of Pay and on completion of 16 years, in the year 1995, the Reader's Scale of Pay.
2.8. As the benefit under the CAS was not extended in favour of the petitioner, she approached the Odisha Administrative Tribunal, Cuttack by way of filing Original Application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A. No.414 (C) of 2000. It is submitted that during the pendency of said application, the petitioner got retired from service with effect from 31.01.2014. The Tribunal upon hearing the parties denied to grant relief claimed for and rejected the said application by an Order dated 03.06.2014.
2.9. Being aggrieved, the petitioner has, thus, carried the matter to this Court in the instant writ petition.
RESPONSE OF THE OPPOSITE PARTIES:
3. Raising objection, the opposite parties referred to Annexure-2 to the writ petition, i.e., Resolution dated 02.03.1982, wherewith the CAMS was taken over with existing teaching/non-teaching staff and the Gazetted staff belonging to the Odisha Industries Services and the Non-Gazetted staff were on deputation to the Education W.P.(C) No.12791 of 2014 Page 5 of 20 and Youth Services Department from the date of transfer of the Institution till their services were required by the Education and Youth Services Department. It was stipulated therein that such staff appointed exclusively for the CAMS would be kept as ex-cadre.
3.1. The petitioner was initially appointed as a Lecturer in Statistics under the Industries Department in Pay Scale of Rs.525/- - Rs.1150/- per month in the CAMS vide Government Notification No.5279, Dated 27.02.1979 for a period of six months. Said notification further stipulated that extension of the period of service in the same pay scale was made vide Government Notification No.22054/I, Dated 31.07.1979 and was allowed to continue as such until further orders in consultation with the Odisha Public Service Commission. The Pay Scale of Rs.525/- - Rs.1150/- (State Pay Scale benefit given to the Lecturers in Non-Government Aided Colleges) was revised to Rs.525/- - Rs.1300/- during 1981 as per Odisha Revised Scale of Pay Rules, 1981. Such Pay Scale benefit to the Lecturers getting State Pay Scale was revised to Rs.1350/- -Rs.2975/- as per Odisha Revised Scale of Pay Rules, 1985.
3.2. In terms of Resolution dated 06.10.1989 vide Annexure-
3 to the writ petition, there is no Pay Scale specified with respect to the Lecturers (Senior Scale) and the Lecturers (Selection Grade) for CAMS, as there is no promotional W.P.(C) No.12791 of 2014 Page 6 of 20 avenue from the Lecturer. Nonetheless, the Scale of Pay is available in the promotional posts of the Reader, the Professor and the Principal-cum-Professor.
3.3. It is clarified that a teacher, having no Ph.D. Degree, shall not be considered by the Selection Committee for availing his promotion to the post of Reader under CAS as per the Guidelines of the State Government prescribed vide Resolution, dated 06.10.1989.
3.4. Under the aforesaid premises, the Odisha Administrative Tribunal, therefore, held that the provisions of CAS laid down in paragraph 3.7 of the Resolution, dated 06.10.1989 is applicable to the teachers working in the general Colleges only, but not in respect of the teachers working the CAMS. Hence, the petitioner is not entitled to get the Scale of Pay of the Lecturers (Senior Scale) or the Lecturers (Selection Grade).
3.5. It is, therefore, contended by the opposite parties that the petitioner, having not satisfied other eligibility criteria, does not deserve to be shown indulgence in the present writ petition.
HEARING:
4. This matter was on board on 26.02.2024. Counsel for both the sides having conceded that pleadings are completed and exchanged, no further indulgence is required. Accordingly, this Court took up the matter for W.P.(C) No.12791 of 2014 Page 7 of 20 hearing and heard Sri Srikar Kumar Rath, learned Advocate for the petitioner and Sri Rabi Narayan Mishra, learned Additional Government Advocate for the opposite parties.
SUBMISSIONS AND ARGUMENTS:
5. Sri Srikar Kumar Rath, learned advocate submitted that the petitioner was allowed to get the UGC Scale of Pay meant for the Lecturers of the Government Colleges in terms of the Resolution of the Education and Youth Services Department dated 06.10.1989, which was also revised from time to time. As such, she is entitled to get the benefit envisaged under the CAS enshrined in the said Resolution. Therefore, he urged that the impugned Order dated 03.06.2014 of the learned Odisha Administrative Tribunal vide Annexure-4 is liable to be quashed.
5.1. Whereas the Resolution dated 06.10.1989 has extended the benefit envisaged thereunder to all categories of full time teachers working in all affiliated Government Colleges and Aided Non-Government Colleges either covered or eligible to be covered under Direct Payment Scheme till 01.04.1989. Therefore, it could not have treated Lecturers, like the petitioner, differently inasmuch as she joined CAMS in pursuance of Notification dated 31.07.1979 of the Industries Department, which was taken over by the Education and W.P.(C) No.12791 of 2014 Page 8 of 20 Youth Services Department by virtue of Resolution dated 02.03.1982 of the Industries Department. It is argued by the learned counsel for the petitioner that on a misreading the terms contained in said Resolutions, the learned Odisha Administrative Tribunal failed to appreciate that on completion of 8 years of service the petitioner ought to have been accorded Pay Scale of Lecturer (Senior Scale) and, on completion of 16 years, Pay Scale of Lecturer (Selection Grade). The learned Odisha Administrative Tribunal misdirected itself by laying emphasis on the provisions of the Odisha Education Services (College Branch) Recruitment Rules, 1990.
5.2. Under the aforesaid premises, the petitioner was entitled to be taken into the fold of benefits contemplated under the CAS as per Resolution dated 06.10.1989 and the provisions of the Odisha Education Service (College Branch) Recruitment Rules, 1990, cannot have retrospective impact. It is further amplified by explaining that the petitioner was regularly recruited by the Government in a recruitment process in the year 1979 and the said Rules, 1990 came into force with effect from 01.01.1986, i.e., much after the appointment of the petitioner, the latter has no application to the facts of the present case. Therefore, it is contended that the learned Odisha Administrative Tribunal has not applied W.P.(C) No.12791 of 2014 Page 9 of 20 its mind in true perspective, as such the impugned Order is liable to be quashed.
6. Refuting the contentions and averments, Sri Rabi Narayan Mishra, learned Additional Government Advocate submitted that as per policy decision taken at the Government level, two sets of Scales of Pay have been prescribed-- one, is for the general Colleges and the other, for the CAMS. As is apparent in Resolution dated 06.10.1989, the Scales of Pay for Lecturers (Senior Scale) and Lecturers (Selection Grade) have been provided with respect to general Colleges; whereas such Scales of Pay are unavailable in respect of CAMS. In the said Resolution, the teaching staff of following designation in respect of CAMS have been specified:
i. Principal-cum-Professor
ii. Professor
iii. Associate Professor/Reader
iv. Lecturer.
Therefore, it is submitted that the claim of the petitioner, who was Lecturer, could not be extended the benefit of CAS.
6.1. Having reference to paragraph 3 of the Resolution dated 02.03.1982, it has been contended by the learned Additional Government Advocate that, it was the policy W.P.(C) No.12791 of 2014 Page 10 of 20 decision taken by the Government at the time of transfer of CAMS, Cuttack from administrative control of the Industries Department to the Education and Youth Services Department, "staff appointed exclusively for the CAMS will be kept ex-cadre". Having accepted such policy decision, the petitioner cannot at this distance of time question discrimination, more particularly so when the policy decision of the Government is not under challenge before this Court.
ANALYSIS WITH DISCUSSIONS:
7. Bare perusal of the Resolution dated 06.10.1989 transpires that two sets of Pay Scale have been prescribed-- one is for general Colleges and the other is for CAMS. For the general Colleges the Scales of Pay of Lecturer (Senior Scale) is Rs.3000/- - Rs.5000/- and the Pay Scale of Lecturer (Selection Grade) is Rs.3700/- -
Rs.5700/-, but for the Lecturers working in the CAMS the said Pay Scales for such categories of Lecturers have not been provided. In the said Resolution the Pay Scales for Lecturer, Associate Professor/Reader and Professor, Principal-cum-Professor have been prescribed. As per Rule 3 of the Odisha Education Services (College Branch) Recruitment Rules, 1990 which came into force with effect from 01.01.1986, the constitution of service comprises of posts namely, the Lecturer, the Lecturer (Senior Scale), the Assistant Director in the Directorate W.P.(C) No.12791 of 2014 Page 11 of 20 of Education, the Reader/Lecturer (Selection Grade), the Principals of Degree College other than a Lead College or an Autonomous College, the Vice-Principal of College, the Deputy Directors in the Directorate of Education and the Secretary, Selection Board. As per Rule 3(3) of said Rules, 1990, Scale of Pay of the posts in different grade and posts of the service shall be such as may be determined by the Government from time to time. Accordingly, different Pay Scales have been prescribed for each service, but there is no such post, viz. the Lecturer (Senior Scale) or the Lecturer (Selection Grade), as mentioned in the Resolution dated 06.10.1989 for general Colleges, prescribed for teaching staff working in the CAMS. Thus the petitioner is not entitled to get the Senior Scale nor the Selection Grade like their counterparts in the general Colleges.
7.1. Even though it is conceded that the provisions of the Odisha Education Services (College Branch) Recruitment Rules, 1990, came into force with effect from 01.01.1986, has no application to the instant facts of the case, as vehemently argued by the counsel for the petitioner, the essential qualification in order to avail benefit of the CAS in terms of the Resolution dated 06.10.1989 has not been satisfied by the petitioner, which is elaborately discussed infra.
W.P.(C) No.12791 of 2014 Page 12 of 208. For a Lecturer at the CAMS, no promotional avenue is provided for to the post of Lecturer (Senior Scale) or Lecturer (Senior Grade). Only promotion to the post of the Reader, the Professor and the Principal-cum- Professor is permissible. Paragraph 3.6 contains qualifications for the post of the Lecturers, the Readers and the Professors in the affiliated Colleges. Paragraph 3.6.1 of the Resolution clarifies that the minimum qualification for the post of the Lecturer in the revised scale of Rs.2200/- -Rs.4000/- shall be Master's Degree in the relevant subject with at least 55% of marks or its equivalent Grade and good academic record. Paragraph 3.7 of the Resolution, dated 06.10.1989 dealing with CAS specifies that every Lecturer will be placed in a Senior Scale in the scale of Rs.3000/- - Rs.5000/- if he or she has completed 8 eight years of service after regular appointment and participated in two refresher course/summer Institutes, each approximately four weeks duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the University Grants Commission. Paragraph 3.8 of the Resolution makes it clear that such Lecturer in the Senior Scale will be eligible for promotion to the post of the Reader in the Scale of Pay of Rs.3700/- - Rs.5700/-, if he/she has completed eight years of service in the Senior Scale, provided that the requirement of eight years will be W.P.(C) No.12791 of 2014 Page 13 of 20 relaxed, if the total service of the Lecturer is not less than sixteen years and has obtained a Ph.D. Degree or an equivalent published work. At Paragraph 8.3.3, in addition to the above it is stipulated that the Lecturer must make some mark in the areas of scholarship and research as evidenced by self-assessment, reports of referees, quality of publication, contribution to educational renovations, design of new courses and curricula, etc. Further such candidate should have participated in two refresher courses/summer institutes each of approximately four weeks duration.
8.1. Therefore, to consider the case of the petitioner it was felt proper for the learned Tribunal instruct her to approach the competent authority in the Government taking into account if she has been discharging similar nature of duties and responsibilities as being discharged by the Lecturers of general Colleges.
9. Paragraph 3.9 of the Resolution states that promotion to the post of Reader will be through a process of selection by a Selection Committee to be set up by the State Government as per guidelines laid down by the University Grants Commission in this regard from time to time which shall be followed. Paragraph 3.11, provides that existing Lecturers, who have completed or will complete a total period of sixteen years of service as on 01.01.1986 or thereafter will be eligible for promotion W.P.(C) No.12791 of 2014 Page 14 of 20 to the post of Reader or placement in the Selection Grade in accordance with the provisions in Paragraph 3.8, 3.9 and 3.10.
9.1. It is, therefore, crystal clear that a teacher shall not be considered by the Selection Committee for availing promotion to the post of Reader if he/she has no Ph.D. Degree so as to claim benefit under the CAS. It is also not the case of the petitioner that she was otherwise qualified as required under Paragraph 3.11 of the Resolution. As it is not in dispute that the petitioner does not possess Ph.D. Degree, her claim by way of prayer in the writ petition for grant of Reader's Scale of Pay with effect from 31.07.1995 cannot be acceded to.
10. As has rightly been conceded by the petitioner that the claim for benefit of CAS in respect of the Lecturer is policy decision of the Government. The learned Odisha Administrative Tribunal is, therefore, correct in its approach to relegate the petitioner to approach the opposite parties.
10.1. It is noteworthy here to state that when the Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert's opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade W.P.(C) No.12791 of 2014 Page 15 of 20 itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the policy violates Article 21, when it restricts particular category of Lecturers working in the institution like CAMS vis-à-vis Lecturers working in general Colleges. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. Reference may be had to State of Punjab Vrs. Ram Lubhaya Bagga, AIR 1998 SC 1703; Ram Singh Vijay Pal Singh Vrs. State of U.P., (2007) 6 SCC 44; Villianur Iyarkkai Padukappu Maiyam Vrs. Union of India, (2009) 7 SCC 561. Thus, it emerges to be a settled legal proposition that Government has the power and competence to change the policy on the basis of ground realities.
10.2. It may be noteworthy to have reference to the following observations from the judgment in Maharashtra State Board of Secondary & Higher Secondary Education Vrs. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27:
"The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which W.P.(C) No.12791 of 2014 Page 16 of 20 will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitation imposed by the Constitution."
10.3. Since the petitioner has not challenged the policy of the Government reflected through the Resolution(s), this Court desists from dealing with the issue of discrimination, inasmuch as save and except praying "to grant the benefit under the Career Advancement Scheme, i.e., to grant Senior Lecturer's Scale with effect from 01.07.1987 and Reader's Scale with effect from 31.07.1995" and "quash the impugned Judgment under Annexure-4", i.e., Order of the Odisha Administrative Tribunal, the petitioner has not put forth any other grievance. On facts, therefore, it seems the Odisha Administrative Tribunal has come to an appropriate conclusion.
W.P.(C) No.12791 of 2014 Page 17 of 2010.4. Since the petitioner has accepted the terms of Resolution dated 02.03.1982 which resulted in transfer of administrative control of CAMS under the Industries Department to the Education and Youth Services Department and continued to work as Lecturer, and claiming the benefit of CAS provided in Paragraph 3.7 of the Resolution dated 06.10.1989 without questioning the policy of Government to have different structures of teaching staff for the general Colleges and the CAMS as in Paragraph 3.3 thereof, the decision relied on by the counsel for the petitioner on Bihar State Government Secondary School Teachers Association Vrs. Bihar Education Service Association, (2012) 13 SCC 33 has no application to the fact-situation of the present case. In the said reported judgment the legality of rescission of Resolution for merger of two cadres in the Bihar Subordinate Education Service with the Bihar Education Service Class-II was questioned.
10.5. In the aforesaid decision, the Hon'ble Supreme Court at paragraph 45 observed as follows:
"It cannot be disputed that it was for the State Government to take appropriate decision on the recommendation. The recommendations made by the Committee will of course have to be seen as the material placed before the Government. However, ultimately, it is the decision of the Government which is relevant and therefore one has to look at the wording in the notification of the State Government. ***"W.P.(C) No.12791 of 2014 Page 18 of 20
10.6. In the aforesaid perspective, this Court is of the opinion that the petitioner having claimed the benefit of CAS provided under the Resolution dated 06.09.1989 without questioning the Pay Scales provided for different categories of teachers in general College vis-à-vis CAMS, the contention of the counsel for the petitioner cannot be acceded to; more so, as has already been narrated in the foregoing paragraphs that the petitioner has not fulfilled the conditions specified in order to avail benefit of CAS.
CONCLUSION & DECISION:
11. Bearing in mind the limited scope for showing indulgence in the Order of the learned Odisha Administrative Tribunal, when the point at issue is considered with the afore-discussed factual matrix with reference to Resolutions of the Government, it is quite manifest that the staffing pattern in the CAMS is completely distinct from that of the general College. The Lecturers in the general College and the Lecturers in CAMS perform different nature of job. Whereas, no post of the Lecturer (Senior Scale) and the Lecture (Selection Grade) are put in place in CAMS, such posts are available in respect of general Colleges. The promotion to the post of the Reader requires certain qualifications and pre-requisites. The petitioner, in the present case, is not in possession of Ph.D. qualification. Therefore, neither she can be entitled to the post of the Lecturer (Senior W.P.(C) No.12791 of 2014 Page 19 of 20 Scale) and the Lecture (Selection Grade) nor could she claim for promotion to the post of the Reader.
12. In the aforementioned conspectus, this Court is of the opinion that the Odisha Administrative Tribunal having passed just and proper reasoned Order on 03.06.2014, while disposing of O.A. No.414 (C) of 2000, interference with the same is not warranted. In fine, having perceived no infirmity in the Order dated 03.06.2014 of the learned Odisha Administrative Tribunal in O.A. No.414 (C) of 2014, this Court does not find any justification to interfere with the impugned order and, hence, the writ petition, sans merit, is dismissed, but in the circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE MR. CHAKRADHARI SHARAN SINGH, CJ. I agree.
(MR. CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 13-May-2024 19:20:52 High Court of Orissa, Cuttack The 13th May, 2024//MRS/Suchitra W.P.(C) No.12791 of 2014 Page 20 of 20