Orissa High Court
Jasobanta Mohanty vs State Of Orissa And Others on 16 July, 2016
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
O.J.C. No.2124 of 1998
In the matter of an application under Article 226 & 227 of the
Constitution of India.
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Jasobanta Mohanty .... Petitioner
Versus
State of Orissa and others .... Opposite parties
For Petitioner -- Ms.Mira Ghose
Advocate
For Opposite parties -- Mr.M.Bisoi,
Standing Counsel for
(S & M.E.)
PRESENT:
THE HON,BLE DR. JUSTICE A.K.RATH
Date of Hearing: 12.07.2016 : Date of Judgment:16.07.2016
Dr.A.K.Rath, J.By this writ application under Article 226 of the Constitution of India, the petitioner has prayed inter alia for a direction to the opposite parties to allow him to draw trained graduate scale of pay with effect from the date of acquiring B.Ed. qualification.
2. Case of the petitioner is that he was appointed as an Assistant Teacher in the trained matric post in Nimpur Sasan High School on 15.7.1969 by the Managing Committee of the school. The school in question was established in the year 1969. It got recognition in the year 1971 and came under the fold of grant-in-aid scheme in the year 1974. He was adjusted against the trained intermediate post with effect from 24.4.1976. The post was upgraded to a trained 2 graduate post. While the matter stood thus, he passed B.Ed examination in May,1984 and the result thereof was published on 13.5.1985. After he became a trained graduate, he is entitled to get trained graduate scale of pay as per the notification of the Government vide letter no.XIV EDET 5/83, 5680 EYS dated 7.2.1983. Thereafter he approached the authorities for allowing him trained graduate scale of pay from 13.5.1985, but the same was denuded. With this factual scenario, the writ application has been filed.
3. Pursuant to issuance of notice, a counter affidavit has been filed by opposite party no.3. It is stated that the Managing Committee of Nimapur Sasan High School appointed the petitioner as an Assistant Teacher, 5th Trained Graduate without observing the principles of Yardstick, 1981 prescribed by the Government. Only one science graduate is working in the school. The yardstick of the year 1981, which came into force with effect from 1.6.1983, prescribed that in the aided high schools there shall be four trained graduate teachers excluding the headmaster. Amongst those four trained graduate teachers, two must be trained arts graduate and two must be science graduate. From those two science graduates, one must be of P.C.M. group and another must be from C.B.Z. group. The post against which the present petitioner was continuing is the 5th post which is exclusively meant for a science graduate having C.B.Z combination. The same is earmarked for the trained graduate teacher having C.B.Z. group of subject. The petitioner, being a B.A. B.Ed., cannot be accommodated against such post and as such no approval can be granted.
4. An identical question came up for consideration before this Court in the case of Madhab Chandra Podh Vrs. State of Orissa and 4 others, 1998 (II) OLR-334. The petitioner was appointed against 3 an I.A.C.T. post on 22.2.1973 in Sachidananda High School in the district of Bolangir. The post he was holding was upgraded with effect from 28.1.1975 to a trained graduate post. He continued in that post in the scale of pay of I.A.C.T. Teacher as he was a graduate. In December, 1983 he became a trained graduate. In accordance with the decision of the Government in its letter No.XIV EDET 5/83, 5680 EYS dated 7.2.1983 addressed to the Deputy Director of Public Instructions, Orissa, he was entitled to the trained graduate scale of pay. The grievance of the petitioner was that though he was continuing against a trained graduate post, yet he was refused to be granted the trained graduate scale of pay since the date of his acquiring such qualification.
5. Relying on the letter No.XIV EDET 5/83, 5680 EYS dated 7.2.1983 addressed to the Deputy Director of Public Instructions, Orissa, the State of Orissa justified its action. This Court held thus:-
"In the decision of the Government communicated to the Deputy Director of Public Instructions on 7.2.1983 it was decided that there is no bar to allow trained scale of pay to all untrained graduate appointed against a trained graduate post as soon as he acquires training qualification. This decision was being taken by the Government in the background of the fact as to whether there was any necessity to amend the Rule 8(2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as the '1974 Rules'). The decision was that there was no need for amendment of the Rule to achieve the purpose of granting Trained Graduate Scale of pay to a teacher who had been appointed against a Trained Graduate Post but was being paid a lesser scale of pay because of his not having the trained qualification. This was a general decision applicable to all such teachers and undoubtedly since the petitioner was holding the appointment against the Trained Graduate post since 1975, he became entitled to the Trained Graduate Scale on his acquiring the trained qualification. Such right of the petitioner is not to be defeated only because of the revised yardstick. All that the revised yardstick purported 4 to say was that in a school there must be two Trained Science Graduate Teachers and two Trained Arts Graduate Teachers besides the Headmaster. It did never say that the teacher who has become entitled to the Trained Graduate scale of pay would be deprived of the same. Rule 8(2)(b) of the 1974 Rules was the rule which deals with promotion of in service teachers in a school providing that the managing committee can, with the prior approval of the Government promote a teacher to a post carrying higher scale of pay if there is a vacancy. The decision was being taken in that background that the prior approval of the Government would not be necessary in view of the fact that the Government had no objection to the grant of higher scale of pay to the teachers who had acquired trained qualification while holding their appointments against the Trained Graduate Posts. If as a result of a teacher acquiring trained qualification there was a surfeit of Trained Arts Graduate Teachers or the Trained Science Graduate Teachers in the school, as the case may be, the obvious thing to be done is to transfer the required Teachers to some other institutions and in their place get the teachers as are necessary for the purposes of the school. It is for such reason that the petitioner must succeed to the declaration that he is entitled to be granted the Trained Graduate scale of pay from December 1983 and be placed in the cadre of Trained Graduate Teachers from that date. The authorities are free to transfer the petitioner, if the necessity so arises, in accordance with the requirement of the yardstick as in Annexure-C. The arrear dues of the petitioner in the Trained Graduate scale of pay be paid to him within three months from the date of receipt of the writ from this Court."
6. The ratio of Madhab Chandra Podh (supra) applies with full force to the facts and circumstances of the present case.
7. The next question that arises for consideration of this Court whether the petitioner is entitled to arrear salary with effect from he acquired B.Ed. qualification. In the case of Union of India and others Vrs. Tarsem Singh, (2008) 8 Supreme Court Cases 648, the apex Court in paragraph-7 of the report held thus:-
5"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. In so far as the consequential relief of recovery of arrears for a past period is concerned, 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."
8. In view of the authoritative pronouncement of the apex Court in the case of Tarsem Singh (supra), the petitioner is entitled to arrear salary for a period of three years prior to the date of filing of the writ application.
9. The inescapable conclusion is that the petitioner is entitled to trained graduate scale of pay with effect from the date he acquired B.Ed. qualification. With regard to the arrear salary, the same shall be calculated and paid to the petitioner for a period of three years prior to the filing of the writ application. Since the petitioner has retired from service, his pensionary benefits shall be calculated accordingly. The entire exercise shall be completed within a period of six months. The writ application is allowed. No costs.
610. Before parting with the case, this Court is of the view that the claim of the petitioner was denuded on jejune grounds. The immortal words of Chief Justice Chagla in the case of Firm Kaluram Sitaram Vrs. The Dominion of India, AIR 1954 Bombay 50, that when the State deals with a citizen it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent judges, as an honest person.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 16th July, 2016/CRB.