Orissa High Court
Shantilata Nayak vs State Of Odisha & Ors. ..... Opp. Parties on 18 October, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.P(C) NO. 26431 OF 2023
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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Shantilata Nayak ..... Petitioner
-Versus-
State of Odisha & Ors. ..... Opp. Parties
For petitioner : M/s. R. Mohapatra &
N. Sarkar, Advocates
For opp. parties : Mr. A.R. Dash,
Addl. Govt. Advocate
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN DECIDED ON : 18.10.2023 DR. B.R. SARANGI, ACJ. The petitioner, by means of this writ petition, seeks to quash the order dated 26.02.2019 passed in O.A. No.2518 (C) of 2009 under Annexure 1, by which the Odisha Administrative Tribunal, Cuttack Bench, Cuttack has dismissed the said O.A., as well as // 2 // the order dated 08.03.2009 passed by the Inspector of Schools, Balasore Circle, Balasore in Annexure-5, in compliance of the order passed by the Tribunal in O.A. Nos.1067(C) of 1999 and 677 of 2007, and further, by declaring Clause (b) of Para-3 of the guidelines dated 28.06.2000 as bad, illegal and non est in the eye of law, to issue direction that the petitioner is entitled to Headmaster's scale of pay w.e.f. 07.01.1974, and further by declaring the pay fixation dated 26.11.1992 as correct, to re-fix the pay as per the pay fixation order dated 26.11.1992.
2. The factual matrix of the case, in brief, is that the petitioner, having trained graduate qualification, was appointed as Headmistress in letter dated 01.01.1974 of the Secretary of Khaira Girls' High School which was an Aided High School. Her services were approved vide order dated 02.07.1974 by opposite party no.3 as Headmistress and Headmaster scale was allowed to her as per order under Annexures- 1 and 2 to the O.A. Her pay in the Headmaster scale of pay was fixed at Rs.500-15-650-EB-20-710-EB-25-760-30-790- // 3 // 35-825/- .Thereafter her salary was revised from time to time and fixed vide order dated 01.01.1994 in the scale of pay of Rs. 1700-60-2300-EB-75-3200/- and the next date of increment was fixed to 01.01.1995. This scale was from the date of her joining as Headmistress w.e.f. 07.01.1974. Thereafter, she was transferred as Headmistress in Oupada Girls' High School in the year 1988. The State in its resolution No.38522/SME, dated 16.12.1994, w.e.f. 07.06.1994 took over the management of all the Aided High schools and the petitioner became a Government servant from that date. On 16.12.1994, her pay was fixed at was Rs. 2750/- in the scale of pay Rs.1700-60-2300-EB-75-3200/-. As per clause-2.2 of the Resolution dated 16.12.1994, her pay was protected without changing the date of increment. 2.1 Odisha Revised Scale of Pay Rules, 1998 came into force w.e.f. 01.01.1996. Opposite party no.3 reduced the pay of the petitioner in his order dated 12.03.1999 by fixing Headmistress scale of pay w.e.f. 01.01.1981 i.e. after seven years of her teaching experience. On the basis of the said fixation, her pay // 4 // was fixed at Rs. 2120/- from the date of taking over of the school by the Government and reduction of Rs. 600/-from her basic scale of pay in order dated 12.03.1999 at Annexure- 5 to the O.A. Being aggrieved she challenged the said order by filing in O.A. No. 1067 (C) of 1999. In the mean time, opposite party no.1 vide order dated 24.07.1991 clarified that seven years rule is not applicable for the appointees before 01.04.1975. While O.A. No. 1067 (C) of 1999 was pending adjudication, the petitioner got retired from service on 31.10.2006. Her retiral dues were not disbursed on the ground that the matter relating to fixation of pay is yet to be finalized. Being aggrieved the petitioner filed O.A. No. 677 (C)/2007 praying for release of pension, gratuity etc. 2.2 The petitioner had filed O.A. No. 1067 (C) of 1999 challenging re-fixation of pay on the ground that seven years teaching experience was not required for the post of Headmistress, when she got her initial appointment. Similar matter was adjudicated by the Tribunal in the case of Premalata Kanungo-vrs- State // 5 // of Orissa and others, (2005) 2 ATT (OAT) 466. Since O.A. No. 1067(C)/1999 and O.A. No. 677 (C)/2007 are interlinked, both the O.As. were heard and disposed of analogously in a common order on 22.03.2007 directing the opposite parties to decide the entitlement of the petitioner for the post of Headmaster, as per order passed in O.A. No. 232 (C)/2007 and batch and then decide retiral benefits. Nothing has been done in this regard. The petitioner was not a party to O.A. No. 232 (C)/2007. As per order in that 0.A, the Tribunal directed that the question of entitlement for the post of Headmaster will be considered as per cut off date so fixed by the Tribunal which has been confirmed by the apex Court along with para-3 of the guidelines dated 28.06.2000 issued by opposite party no.1. The petitioner had filed W.P.(C) No.5565 of 2009 before this High Court after going through the guidelines dtd. 28.06.2000. The guidelines have been upheld by the apex Court and made mandatory. The petitioner challenged that guideline made the direction of this Court in-operative and overrides the direction of this // 6 // Court. This Court disposed of W.P.(C) No. 5565 of 2009 on 03/09/2009 allowing the petitioner to move the Tribunal. Thereafter on 08.03.2009, the opposite parties passed an order that the pay fixation of the petitioner was illegal, as she did not have seven years experience. 2.3 Prior to 29.04.1977, qualification for the post of Headmaster in an Aided school was Trained Graduate. On 22.12.1953 Board of Secondary Education, Odisha Cuttack framed a regulation that to be a Headmaster in an Aided High School, at least seven years of service experience either as a teacher or as a Headmaster of a Middle English School or two taken together was required. There was, however, a relaxation clause in exceptional cases. Further in Regulation 20 (a) and (b), it is prescribed that qualification for the post of Headmaster is only Trained Graduate. Hence, a cumulative reading of regulation 20(a) and (b) which are on the basis of Article 312 of the Constitution of India makes it clear that the qualification for the post of Headmaster is Trained Graduate till 29.04.1977. Seven years experience clause was not followed and the // 7 // relaxation was given to Headmasters of all schools. Therefore, the Board's Regulation was amended on 29.04.1977 holding that 7 years teaching experience is mandatory to hold the post of Headmaster. Opposite party no.1, vide G.O. dated 24.07.1991 also made it clear that seven years rule is not applicable prior to 01.04.1975. Therefore, no irregularity in fixing the petitioner's scale in that of a Headmaster from the date she joined and the re-fixation of her scale is arbitrary. From the date of her joining she is discharging the duty of Headmaster with due approval of the Inspector of Schools. Thereby, she has a vested right to get that scale on the basis of her appointment and her scale cannot be reduced later on the ground of seven years experience. Therefore, the order passed by the Inspector of Schools is liable to be quashed. Government in its Resolution dated 16.12.1994 taking over the schools at clause-2.2 provides that the pay of employees shall be protected without any change in the date of increment. The petitioner was getting Rs.2,750/- on the date of taking over the school and this has to be protected at // 8 // clause-2.2 of the resolution. Reducing the scale after five years of taking over of her service by fixing it in Headmaster scale after seven years of initial appointment is illegal. Clause-3 (b) of the impugned guidelines is contrary to the settled position of law. This Court in the case of Golak Ch. Mohanty and Ors v. State of Orissa andOrs., Vol-76 (1993) CLT 308 settled the case directing that seven years of teaching experience is mandatory and required only for those who have been appointed on or after 29.04.1977. The same view was taken in Priti Ranjan Pradhan v. State of Orissa and Ors., 1996 (1) OLR 145 and 1999(1) OLR 187 and the same was upheld by the apex Court in Pabitra Mohan Dash etc. v. State of Orissa and Ors., Vol. 91 (2001) CLT 615. Hence said clause (b) of para-3 of the guideline is illegal and not tenable relating to said seven years teaching experience for teachers appointed as Headmaster prior to cut off date i.e. 29.04.1977. The said guideline was never given effect or produced before this Court or the apex Court. It is only prospective and applicable to fresh cases for promotion or promotions // 9 // made after 29.04.1977. It cannot be made applicable to the petitioner. Therefore, the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.2518(C) of 2009 seeking direction that she is entitled to get Headmaster's scale of pay w.e.f. 07.01.1974 and hold that by fixation order dated 26.11.1992 is correct and re-fixation of pay dated 12.03.1999 is illegal and accordingly direct the opposite parties to re-fix her pay in Headmaster's scale of pay w.e.f. 07.01.1994 till the date of her retirement and to disburse arrear and retiral dues accordingly. 2.4 After due adjudication, the Tribunal, vide order dated 26.02.2019, came to a conclusion that as per Government order dated 24.02.1994, prior to 01.04.1975 the Headmaster was required to have it least 7 years of service either as a teacher in a High School or as a Headmaster of M.E. School or two taken together. Besides he/she was required to be trained graduate. The petitioner had entered into service vide letter dated 01.01.1974 and her service was approved vide order dated 02.07.2014. Therefore, as per // 10 // guidelines and Government Rules relating to fixation of pay as per the substituted provision in letter dated 24.02.1994 her pay has been fixed appropriately as she had not acquired seven years teaching experience prior to 01.04.1974. Thereby, the Tribunal held that there is no illegality or irregularity committed by the respondent authorities in passing the order in refixation of her pay and accordingly dismissed the said O.A. 2.5. Being aggrieved by the order dated 26.02.2019 passed by the Tribunal, the petitioner approached this Court by filing W.P.(C) No.7795 of 2019. When the said matter was taken up on 17.07.2023, this Court passed the following order:
"1. This matter is taken up through hybrid mode.
2. Heard Mr. N. Sarkar, learned counsel for the petitioner and Mr. A.K. Mishra, learned Additional Government Advocate for the State.
3. Mr. A.K. Mishra, learned Additional Government Advocate raised preliminary objection indicating that the prayer sought for by the petitioner cannot be granted in view of the fact the petitioner has prayed for quashing of the orders dated 29.02.2019 and 09.03.2009, but such orders have not been made a part of the writ petition. Similarly though the petitioner seeks to declare Clause (b) of Para-3 of the guidelines dated 28.06.2000 as bad, illegal and nonest in the eye of law, but the same has also not been made a part of the writ petition.
// 11 //
4. Learned counsel for the petitioner contended that though the petitioner has challenged the order dated 26.02.2019 passed in O.A. No. 2518 (C) of 2009, but there is a wrong mentioning in the prayer portion and in place of order dated 26.02.2019, it has been typed as 29.02.2019. So far as the order dated 08.03.2009 and the guideline Page 2 of 2 dated 28.06.2000 is concerned, the same have been made a part of the Original Application, therefore, the petitioner has not annexed the said order separately.
5. But fact remains, if the petitioner wants to quash such orders and guidelines, the same should have been formed a part of the writ petition itself.
6. In view of the above, since the writ petition is defective one, this Court is not inclined to entertain this writ petition. However, at this point of time, learned counsel for the petitioner contended that the petitioner wants to withdraw the writ petition.
7. Accordingly, the writ petition stands disposed of as withdrawn."
3. Since the said writ petition was defective one, and the said defect was not rectified by the petitioner from 2019 to 2023, this Court did not feel inclined to entertain this writ petition and at this stage, learned counsel appearing for the petitioner withdrew the said writ petition.
4. Mr. N. Sarkar, learned counsel appearing for the petitioner contended that the dismissal of O.A. No.2518(C) of 2009 by the Tribunal cannot have any justification and the same is liable to be quashed. He // 12 // also admitted that there was gross error in filing of the previous writ petition. Therefore, the earlier writ petition was withdrawn and the present writ petition has been filed in delay of 4 years.
5. Mr. A.R. Dash, learned Additional Government Advocate appearing for the State-opposite parties contended that the Tribunal has not committed any error apparent on the face of the records so as to cause interference of this Court. As such, the relief sought by the petitioner cannot be granted and the writ petition should be dismissed.
6. This Court heard Mr. N. Sarkar, learned counsel appearing for the petitioner and Mr. A.R. Dash, learned Additional Government Advocate appearing for the State-opposite parties in hybrid mode. Since it is a certiorari proceeding and on the basis of materials available on record, with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
// 13 //
7. Admittedly, the petitioner had not acquired seven years of teaching experience on the date of her appointment, as she was appointed by the Managing Committee on 07.01.1974 and her pay was fixed in Trained Graduate scale and after completion of seven years of experience on 07.04.1981 in terms of government letter dated 25.04.1981. Subsequent pay fixation was made in terms of para-4 of the Government letter, which has been substituted by G.O. dated 24.02.1994. The substituted provision clearly outlined that "prior to 01.04.1975 the Headmaster was required to have seven years of service experience". It is not in dispute that the Managing committee of Oupada High School was taken over by the Government on 07.06.1994 and in the modification of pay, her pay was protected from the date of her appointment. Therefore, refixation of pay is within the guidelines as per different rules. It was emphasized by the opposite parties that in compliance of the order passed in OJC No.9655 of 1992 and batch, the Government of Odisha issued // 14 // instructions in Government letter dated 28.06.2000 which was followed.
8. There is no dispute that the petitioner having acquired the TG qualification was initially given appointment as Headmistress, vide letter dated 01.01.1974 issued by the Secretary of Khaira Girls' High School, an aided institution. Opposite party no.3 approved her service vide order dated 02.07.1974 and she was allowed Headmaster scale fixing her pay of Rs.500-15-650-EB-20-710-EB-25-760-30-790-35-825. Thereafter, her salary was revised from time to time and increment was fixed accordingly. While she was continuing, she was transferred to Oupada Girls' High School in 1988, which was also an aided institution. While continuing so, vide Resolution dated 16.12.1994 all the aided institutions were taken over by the Government with effect from 07.06.1994 and consequently, the petitioner became a Government servant. Accordingly, her pay was fixed at Rs.2750/- in the scale of pay of Rs.1700-6--2300-EB-75-3200/-. The grievance of the petitioner is that when ORSP Rules, // 15 // 1998 came into existence with effect from 01.01.1996, her pay was reduced to Rs.2120/- vide order dated 12.03.1999 on the ground that she had not acquired at least 7 years of teaching experience either as teacher in a High School or as a Headmaster of M.E. School.
9. It is worthwhile to mention that as per Government order dated 24.02.1994, prior to 01.04.1975, the Headmaster was required to have at least 7 years of service either as a teacher in a High School or as a Headmaster of M.E. School or two taken together. Besides, he/she was required to be trained graduate. The petitioner entered into service vide letter dated 01.01.1974 and her service was taken over w.e.f 07.06.1994. Therefore, as per guidelines and Government rules relating to fixation of pay as per the substituted provision in letter dated 24.02.1994 her pay has been fixed appropriately, as she had not acquired seven years teaching experience prior to 01.04.1975.
10. In view of such position, this Court does not find any error in the order dated 26.02.2019 passed by // 16 // the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.2518(C) of 2009 so as to cause interference of this Court.
11. In the result, the writ petition merits no consideration and the same stands dismissed. But, however, in the circumstance of the case there shall be no order as to costs.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Orissa High Court, Cuttack
The 18th October, 2023, Alok
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: orissa high court
Date: 19-Oct-2023 17:16:40