Orissa High Court
Ajit Kumar Mishra vs State Of Odisha & Others .... Opposite ... on 21 March, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10252 of 2014
In the matter of an application under Articles 226 & 227 of
the Constitution of India, 1950
..................
Ajit Kumar Mishra .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Mr. S.K. Das, Advocate.
For Opp. Parties : Mr. S.K. Jee, Addl. Govt.
Advocate.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:21.03.2025 and Date of Judgment:21.03.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
// 2 //
3. The present Writ Petition has been filed by the Petitioner inter alia with the following prayer:-
"Under the above circumstances, it is therefore humbly prayed that this Hon'ble Court be graciously pleased to issue a writ in the nature of mandamus or any other appropriate writ/writs, order/orders and direction/directions and direct the opp. parties more specifically the opp. party no.3 to release the arrear block grant of the petitioner in the untrained scale @ 4496/-from 1.1.2004 to 28.6.2010 and the enhance rate of block grant @ Rs.8000/- from 1.4.2013 to 9.3.2014 and further the block grant in the trained scale @ Rs.13,500/- from onwards 10.3.2014 within the stipulated period of time as deem fit and proper.
And for this act of kindness as in duty bound the petitioner shall ever pray."
4. Learned counsel appearing for the Petitioner contended that pursuant to the order passed by the State Education Tribunal (in short 'Tribunal') vide order dtd.03.02.2006 in GIA Case No.136 of 2004, further confirmed by this Court in its order dtd.25.09.2007 in W.P.(C) No.863 of 2007, Opposite Party No.3 initially vide office order dtd.28.06.2010 under Annexure-1 allowed the Petitioner to join in the School in question. While issuing such a direction, Opposite Party No.3 also held the Petitioner entitled to get block grant in the untrained scale of pay from the date he joins in duty. Page 2 of 30
// 3 // 4.1. It is contended that vide another office order issued on 29.06.2010 under Annexure-2 by Opposite Party No.3, appointment of the Petitioner was approved against a TGT post, so made by the Managing Committee of Jhadeswar Bidya pitha, Khanua w.e.f. 29.06.2010, but in the untrained scale of pay. 4.2. It is contended that while so continuing as against a TGT post with receipt of untrained salary, Petitioner when acquired the B.Ed. qualification from IGNOU, the result of which was published on 10.03.2014, Opposite Party No.3 was moved by Opposite Party No.4 with a request to grant trained graduate scale of pay in favour of the Petitioner, vide letter dtd.29.04.2014 under Annexure-3-Series.
4.3. It is contended that on the face of such acquisition of training qualification with due recommendation made to grant TGT scale of pay vide letter dtd.29.04.2014 under Annexure-3-Series, when no further action was taken, the present Writ Petition Page 3 of 30 // 4 // was filed inter alia with the prayer as indicated hereinabove.
4.4. It is vehemently contended that since the services of the Petitioner was duly approved pursuant to the order passed by the Tribunal so merged with order dtd.25.09.2007 of this Court in W.P.(C) No.863 of 2007, taking into account the principle of doctrine of merger, Petitioner is eligible and entitled to get all the benefits as prayed for in terms of the order passed by the Tribunal on 03.02.2006 in GIA Case No.136 of 2004 so confirmed by this Court in its order dtd.25.09.2007 in W.P.(C) No.863 of 2007. With regard to the principle of doctrine of merger, reliance was placed to the decision of the Hon'ble Apex Court in the case of Surendra Pal Sony vs. Sohanlala (dead) legal heir, reported in (2020) 15 SCC-771. Hon'ble Apex Court in Para-14 & 15 of the said decision has held as follows:-
"14. The decision in Kunhayammed [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] was followed by a three-Judge Bench decision of this Court in Chandi Prasad [Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724] , which held thus : (Chandi Prasad case [Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724] , SCC p. 731, paras 23-24) Page 4 of 30 // 5 // "23. The doctrine of merger is based on the principles of propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time.
24. It is trite that when an appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court and even if and subject to any modification that may be made in the appellate decree, the decree of the appellate court supersedes the decree of the trial court. In other words, merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverses the decree passed by the trial court."
15. More recently, the decision in Chandi Prasad [Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724] was followed by a two-Judge Bench of this Court in Shanthi v. T.D. Vishwanathan [Shanthi v. T.D. Vishwanathan, (2019) 11 SCC 419 : (2019) 4 SCC (Civ) 787] rendered on 24-10-2018 in the following terms :
(Shanthi case [Shanthi v. T.D. Vishwanathan, (2019) 11 SCC 419 : (2019) 4 SCC (Civ) 787] , SCC OnLine SC para 7) "7. ... When an appeal is prescribed under a statute and the appellate forum is invoked and entertained, for all intents and purposes, the suit continues. When a higher forum entertains an appeal and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time."
4.5. A further submission was made that on the face of the order passed by the Tribunal on 03.02.2006 in Page 5 of 30 // 6 // GIA Case No.136 of 2004, so confirmed by this Court in its order dtd.25.09.2007 in W.P.(C) No.863 of 2007, Opposite Party No.3 while implementing the said order could not have passed the Office order dtd.28.06.2010 under Annexure-1 and subsequent Office order dtd.29.06.2010 under Annexure-2. It is contended that judgment of a competent court cannot be considered differently by an administrative order. In support of the aforesaid submission, reliance was placed to a decision of the Hon'ble Apex Court in the case of Madan Mohan Pathak and another Vs. Union of India and Others, reported in AIR 1978 SC-
803. Hon'ble Apex Court in Para-24 of the said decision has held as follows:-
"24.M.H. Beg, C.J.-- The Life Insurance Corporation was constituted under the Life Insurance Corporation Act 31 of 1956 (hereinafter to be referred to as "the Act"). On June 1, 1957, the Central Government issued, under Section 11(1) of the Act, an order prescribing the pay scales, dearness allowance and conditions of service applicable to Class III and IV employees. Among these conditions it is stated that no bonus would be paid but amenities like insurance and medical treatment free of cost would be provided. On June 26, 1959, an order was passed by the Central Government under Section 11(2) of the Act, amending para 9 of the 1957 Order inasmuch as it was provided that bonus other than profit sharing bonus would be paid to the employees drawing the salary not exceeding Rs 500 per month. On Page 6 of 30 // 7 // July 2, 1959, there was a settlement between the LIC and the employees providing for payment of cash bonus at the rate of one-and-a-half month's basic salary which was to be effective from September 1, 1956 and valid upto December 31, 1961. In July 1960, regulations were framed under Section 49 to regulate the conditions of service of classes of employees and Regulation 58 provided for payment of non-profit sharing bonus to the employees. Orders were again passed on April 14, 1962 and August 3, 1963, the effect of which was to remove the restriction of Rs 500 for eligibility for payment of bonus. On January 29, 1963, another settlement was arrived at between the LIC and its employees for payment of cash bonus at the rate of one-and-a-half month's basic salary. This was to continue in operation until March 31, 1969. On June 20, 1970, a third settlement was reached for payment of cash bonus at the same rate which was to be effective upto March 31, 1972. On June 26, 1972, a fourth settlement for payment of cash bonus at the rate of 10 per cent of gross wages (basic and special pay and dearness allowance) was made effective from April 1, 1972 to 1973. On January 21, 1974 and February 6, 1974, settlements for payment of cash bonus at 15 per cent of gross wages valid for four years from April 1, 1973 to March 31, 1977, were reached. It is clear that this so called "bonus" did not depend upon profits earned but was nothing short of increased wages. The settlements were approved by the Board of Directors of the LIC and also by the Central Government. On March 29, 1974, a circular was issued by the LIC for payment of bonus in accordance with the settlement along with the salary in April. In April 1974, the payment of bonus for the year 1973-74 was actually made in accordance with the settlement. Again, in April 1975, bonus for the year 1974-75 was made in accordance with the settlements. On September 25, 1975, however, a Payment of Bonus Amendment Ordinance was promulgated. On September 25, 1975, the LIC issued a circular stating that as the payment of bonus was being reviewed in the light of the Ordinance, and, on March 22, 1976, payment of bonus for the year 1975-76 was to be withheld until a final decision was taken. Against this, a writ petition was filed in the High Court of Calcutta. On May 21, 1976, The Calcutta High Court passed an order recognising the right of petitioners to payment of bonus for the year 1975-76 which had become payable along with the salary in April 1976, and ordered that it must be paid to Page 7 of 30 // 8 // the employees. Apparently, bonus was treated as part of the right of the petitioners to property protected by Articles 19(1)(f) and 31(1) of the Constitution. On May 29, 1976, the Life Insurance Corporation Modification of Settlement Act, 1976 was enacted by Parliament denying to the petitioners the right which had been recognised by the settlements, approved by the Central Government and acted upon by the actual payment of bonus to the employees, and, finally, converted into right under the decision of the Calcutta High Court on May 21, 1976".
4.6. Reliance was placed to a decision of the Hon'ble Apex Court in the case of Virender Singh Hooda and Others Vs. State of Haryana and Another, reported in AIR 2005 SC-137. Hon'ble Apex Court in Para-65 & 70 (3) of the said decision has held as follows:-
"65. Despite the aforesald conclusion, the Act (proviso to Section 4(3)) to the extent it takes away the appointments already made, some of the petitioners had been appointed much before enforcement of the Act (ten in number as noticed hereinbefore) in imple-mentation of this Court's decision, would be unreasonable, harsh, arbitrary and violative of Article 14 of the Constitution. The law does not permit the Legislature to take back what has been granted in implementation of the Court's decision. Such a course is impermissible.
xxx xxx xxx 70(3). The benefits already granted to the petitioners in Writ Petition Nos.215 to 218 and 224 of 2002 could not be taken back. To this extent, retorspectivity is ultra vires. In all other respects, it is valid".
4.7. Reliance was placed to a decision of the Hon'ble Apex Court in the case of Southern Petrochemical Industries Co., Ltd. Vs. Electricity Inspector and Page 8 of 30 // 9 // E.T.I.O. & Others, reported in AIR 2007 SC-1984. Hon'ble Apex Court in Para-135, 136, 146 & 147 of the said decision has held as follows:-
"135. In R. v. Secy. of State for the Home Deptt. ex p Hindley [(2001) 1 AC 410 : (2000) 2 WLR 730 (HL)] it is interesting to note the leading speech of Lord Steyn which is more reserved. The Court of Appeal also considered the aforementioned concept in R. v. London Borough of Newham (Bibi case) [2001 EWCA Civ 607 :
(2002) 1 WLR 237] . In Bibi case [2001 EWCA Civ 607 : (2002) 1 WLR 237] the Court accepted that it had jurisdiction to protect a substantive legitimate expectation but adopted a somewhat different approach from the approach taken in Coughlan [2001 QB 213 : (2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] . In a joint judgment the Court said:
"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do."
136. In determining whether an authority has acted "unlawfully", the Court expressed its discontent with the standard laid down in Coughlan [2001 QB 213 : (2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] . It will be in the fitness of the continuing theme, to refer to Coughlan [2001 QB 213 : (2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] on this point:
"The traditional view has been that the Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] categories were exhaustive of what was an abuse of power. However in Coughlan [2001 QB 213 :
(2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] the Court preferred „to regard the Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] categories as the major instances (not necessarily the sole ones), of how public power may be misused‟ (para 81).Page 9 of 30
// 10 // In Coughlan [2001 QB 213 : (2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] the Court followed R. v. Inland Revenue Commrs. ex p Unilever [1996 STC 681 (CA)] in asking itself whether the reneging by an authority on its promise was „so unfair as to amount to an abuse of power‟ (para 78). It concluded that it was. However, without refinement, the question whether the reneging on a promise would be so unfair as to amount to an abuse of power is an uncertain guide."
After having established such an abuse the court may ask the decision-taker to "take the legitimate expectation properly into account in the decision-making process". It does not necessarily follow that a legitimate expectation of a substantive benefit will be satisfied. (See also Barratt v. Howard [2000 FCA 190 : (2000) 170 ALR 529 (Federal Court of Australia, Full Court)] .) Xxx xxx xxx
146. The reason for insertion of such an explanation is to get over the decision of this Court in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [AIR 1958 SC 560 : 1959 SCR 379] wherein it has been held that tax cannot be imposed on sale of materials transferred in execution of a works contract stating: (AIR pp. 569-70, para 24) "24. In our opinion, that is not the inference to be drawn from the absence of words linking up the meaning of the word „sale‟ with what it might bear in the Sale of Goods Act. We think that the true legislative intent is that the expression „sale of goods‟ in Entry 48 should bear the precise and definite meaning it has in law, and that that meaning should not be left to fluctuate with the definition of „sale‟ in laws relating to sale of goods which might be in force for the time being. It was then said that in some of the entries, for example, Entries 31 and 49, List II, the word „sale‟ was used in a wider sense than in the Sale of Goods Act, 1930. Entry 31 is „intoxicating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs...‟. The argument is that „sale‟ in the entry must be interpreted as including barter, as the policy of the law cannot be to prohibit transfers of liquor only when there is money consideration therefor. But this argument proceeds on a misapprehension of the principles on which the entries are drafted. The scheme Page 10 of 30 // 11 // of the drafting is that there is in the beginning of the entry words of general import, and they are followed by words having reference to particular aspects thereof. The operation of the general words, however, is not cut down by reason of the fact that there are sub-heads dealing with specific aspects."
147.Gannon Dunkerley & Co. (Madras) Ltd. [AIR 1958 SC 560 : 1959 SCR 379] has been noticed by a three- Judge Bench of this Court in Bharat Sanchar Nigam Ltd. v. Union of India [(2006) 3 SCC 1] in the following terms:
(SCC p. 30, para 43) "43. Gannon Dunkerley [AIR 1958 SC 560 : 1959 SCR 379] survived the Forty-sixth Constitutional Amendment in two respects. First with regard to the definition of „sale‟ for the purposes of the Constitution in general and for the purposes of Entry 54 of List II in particular except to the extent that the clauses in Article 366(29-A) operate. By introducing separate categories of „deemed sales‟, the meaning of the word „goods‟ was not altered.
Thus the definitions of the composite elements of a sale such as intention of the parties, goods, delivery, etc. would continue to be defined according to known legal connotations. This does not mean that the content of the concepts remain static. The courts must move with the times. [Attorney General v. Edison Telephone Co. of London Ltd., (1880) 6 QBD 244 : 43 LT 697] But the Forty-sixth Amendment does not give a licence, for example, to assume that a transaction is a sale and then to look around for what could be the goods. The word „goods‟ has not been altered by the Forty-sixth Amendment. That ingredient of a sale continues to have the same definition. The second respect in which Gannon Dunkerley [AIR 1958 SC 560 : 1959 SCR 379] has survived is with reference to the dominant nature test to be applied to a composite transaction not covered by Article 366(29-A). Transactions which are mutant sales are limited to the clauses of Article 366(29-A). All other transactions would have to qualify as sales within the meaning of the Sales of Goods Act, 1930 for the purpose of levy of sales tax."
While noticing the said case, it has been held: (SCC pp. 45-46, paras 105-07) "105. The amendment introduced fiction by which six instances of transactions were treated as deemed sale of goods and that the said definition as to deemed sales Page 11 of 30 // 12 // will have to be read in every provision of the Constitution wherever the phrase „tax on sale or purchase of goods‟ occurs. This definition changed the law declared in the ruling in Gannon Dunkerley & Co. [AIR 1958 SC 560 : 1959 SCR 379] only with regard to those transactions of deemed sales. In other respects, law declared by this Court is not neutralised. Each one of the sub-clauses of Article 366(29-A) introduced by the Forty-sixth Amendment was a result of ruling of this Court which was sought to be neutralised or modified. Sub-clause (a) is the outcome of New India Sugar Mills Ltd. v. CST [AIR 1963 SC 1207] and Vishnu Agencies (P) Ltd. v. CTO [(1978) 1 SCC 520 : 1978 SCC (Tax) 31] . Sub-clause (b) is the result of Gannon Dunkerley & Co. [AIR 1958 SC 560 : 1959 SCR 379] Sub-clause (c) is the result of K.L. Johar and Co. v. Dy. CTO [AIR 1965 SC 1082] . Sub-clause (d) is consequent to A.V. Meiyappan v. CCT [(1967) 20 STC 115 (Mad)] . Sub-clause (e) is the result of Jt. CTO v. Young Men's Indian Assn. [(1970) 1 SCC 462] Sub-clause (f) is the result of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1978) 4 SCC 36 : 1978 SCC (Tax) 198] and State of Punjab v. Associated Hotels of India Ltd. [(1972) 1 SCC 472]
106. In the background of the above, the history prevailing at the time of the Forty-sixth Amendment and pre-enacting history as seen in the Statement of Objects and Reasons, Article 366(29-A) has to be interpreted. Each fiction by which those six transactions which are not otherwise sales are deemed to be sales independently operates only in that sub-clause.
107. While the true scope of the amendment may be appreciated by overall reading of the entirety of Article 366(29-A), deemed sale under each particular sub- clause has to be determined only within the parameters of the provisions in that sub-clause. One sub-clause cannot be projected into another sub-clause and fiction upon fiction is not permissible. As to the interpretation of fiction, particularly in the sales tax legislation, the principle has been authoritatively laid down in Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 :
(1955) 2 SCR 603] , SCR at p. 647:
„The operative provisions of the several parts of Article 286, namely, clause (1)(a), clause (1)(b), clause (2) and clause (3) are manifestly intended to deal with different topics and, therefore, one cannot be projected or read into another.‟ (S.R. Das, Actg. C.J.) Page 12 of 30 // 13 // We can also see pp. 720 and 721 (N.P. Bhagwati, J.)." It was categorically held therein: (SCC p. 38, para 75) "75. In our opinion, the essence of the right under Article 366(29-A)(d) is that it relates to user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer, must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents, are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise."
It was furthermore held that only because the Board keeps itself ready for supply of electrical energy, the same by itself would not mean that there had been deliverable goods and the goods have been delivered". 4.8. It is also contended that in the counter affidavit so filed by Opposite Party No.3, though a stand has been taken that in consideration of the proposal submitted by the School under Annexure-3-Series, claim of the Petitioner to get the benefit of TGT scale of pay has been rejected, but no formal order of rejection has been issued or communicated to the Petitioner. 4.9. It is contended that even though no formal order of rejection in rejecting the claim of the Petitioner to get the benefit of Trained Graduate Scale of Pay in consideration of the proposal submitted under Page 13 of 30 // 14 // Annexure-3-Series has yet been communicated to the Petitioner, but in view of the stand taken in Para-15 of the counter affidavit, the same amounts to rejection of the Petitioner's claim and this Court can take note of the same while deciding the claim of the Petitioner as made in the Writ Petition.
4.10. It is accordingly contended that appropriate direction be issued to Opposite Party No.3 to extend the benefit as prayed for.
5. Mr. S.K. Jee, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party No.3.
5.1. It is contended that even though Petitioner was appointed as against a TGT post, but without having any training qualification, by the Managing Committee vide order dtd.30.05.1992 and Petitioner joined as an untrained Science Teacher, BSc. (CBZ) on 15.07.1992. But taking into account the communication issued by the Board of Secondary Education on 01.06.2001 Page 14 of 30 // 15 // under Annexure-C/3, Petitioner was terminated from his services vide Managing Committee Resolution No.17, dtd.02.09.2001.
5.2. Challenging such order of termination, Petitioner preferred an appeal before the Regional Director of Education, Bhubaneswar. The said appeal was allowed vide order dtd.29.07.2003 with an instruction to the Managing Committee to allow the Petitioner to work in his former post and with a direction on the Opposite Party No.3 to forward the application of the Petitioner for his admission into the B.Ed. course during the academic sessions 2003-2004.
5.3. Even though the application form of the Petitioner was forwarded to the Director, TE & SCERT, Orissa vide letter dtd.30.07.2003 of Opposite Party No.3 to allow the Petitioner to undergo in service B.Ed. training, but Petitioner was not selected by the Selection Committee, due to non-fulfillment of criteria and condition of the selection procedure prescribed by the Government.
Page 15 of 30
// 16 // 5.4. It is contended that School in question i.e. Jhadeswar Bidyapitha, Khanua came into the GIA fold in terms of the provisions contained under GIA Order, 2004 w.e.f. 01.01.2004. Even though the School was notified as an Aided Educational Institution and on the face of continuance of the Petitioner services of the Petitioner was not approved, Petitioner moved the Opposite Party No.3 on 09.09.2004.
5.5. Claim of the Petitioner for such approval of his services when was rejected by Opposite Party No.3 vide order dtd.21.09.2004 under Annexure-5, Petitioner challenging such rejection of his claim approached the State Education Tribunal in GIA Case No.136 of 2004. 5.6. It is contended that the GIA application was disposed of by the Tribunal vide order dtd.03.02.2006 inter alia with the following direction:-
"ORDER The case is allowed on contest but without costs. Annexure-5 is quashed. The O.P. Nos. 1, 2 & 3 shall approve the appointment of the applicant and shall give him grant-in-aid at un-trained scale, within a period of three months of communication of a copy of this judgment".Page 16 of 30
// 17 // 5.7. It is contended that order passed by the Tribunal when was not complied with, Petitioner seeking such compliance, approached this Court by filing W.P.(C) No.863 of 2007. This Court vide order dtd.25.09.2007 under Annexure-7 directed the Opposite Parties-State to comply the same within a period of three (3) months from the date of receipt of this order. Pursuant to such order passed by this Court on 25.09.2007 in W.P.(C) No.863 of 2007 and further order passed in the Contempt Petition, Petitioner vide order dtd.28.06.2010 under Annexure-1 was allowed to resume his duty in the School as an Asst. Teacher as against the TGT post, but with block grant in the untrained scale of pay. 5.8. Vide subsequent order issued on 29.06.2010 under Annexure-2, services of the Petitioner was approved as against the post of Asst. Teacher in untrained scale of pay w.e.f. 29.06.2010. 5.9. It is contended that such an order was passed by Opposite Party No.3 vide order dtd.28.06.2010 and 29.06.2010 under Annexures-1 and 2, in compliance to Page 17 of 30 // 18 // the order passed by the Tribunal in GIA Case vide order dtd.03.02.2006 under Annexure-6 and further order passed by this Court on 25.09.2007 under Annexure-7. 5.10.It is contended that the Tribunal vide its order under Annexure-6 since directed for approval of the appointment of the Petitioner and to give him grant-in- aid in the untrained scale of pay, no illegality or irregularity can be found with the order issued under Annexures-1 and 2.
5.11. It is also contended that order passed by the Tribunal under Annexure-6, was never assailed by the Petitioner and he instead seeks for compliance of the same by filing W.P.(C) No.863 of 2007. Since in terms of the order passed by the Tribunal, further confirmed by this Court, services of the Petitioner was approved as against a TGT post but with untrained salary w.e.f. 29.06.2010, the prayer as made in the Writ Petition to allow untrained salary from 01.01.2004 to 28.06.2010 is not at all entertainable.
Page 18 of 30
// 19 // 5.12. It is also contended that claim of the Petitioner to get the benefit of trained graduate scale of pay on his acquiring B.Ed. qualification from IGNOU, the result of which was published on 10.03.2014, since has been rejected by Opposite Party No.3 in consideration of the proposal submitted under Annexure-3, Petitioner is not eligible to get the benefit of trained scale w.e.f. 10.03.2014 as prayed for. The stand taken in Para-15 of the counter affidavit reads as follows:-
"15. That, it is humbly submitted that the petitioner has filed the present writ in W.P(C) No. 10252/2014 praying for release of arrear Block Grant in the untrained scale from 01.01.2004 to 28.06.2010 and the enhanced rate block grant from 01.04.2013 to 09.03.2014 and further block grant in the trained scale @ 13500/- from 10.03.2014 on which date he became Trained from Indira Gandhi National Open University, New Delhi as per provisional certificate.
The claims advanced by the petitioner as above are not admissible at this stage within the frame work of law and rules submitted hereto below:
(i) Without considering the counter filed by the Respondent No. 3, the Inspector of Schools, Mayurbhanj on behalf of the State Respondents duly authorized in GIA Case No. 136/2004, the learned State Education Tribunal pronounced judgment 03.02.2006 exparte against the state respondents.‟
(ii) The ratio of Bibekananda Das in OJC No. 1012/1996 is not applicable to the present petitioner, Sri Ajit Kumar Mishra, untrained Teacher.
The Govt, in S & ME Department, Orissa vide letter No. 17696 dt. 01.06.95 approved a number of posts of Page 19 of 30 // 20 // Additional Section teachers w.e.f 07.06.94 in different schools on the basis of Yardstick and roll strength of each school. At serial No. 10 of the above Govt, letter, the name of Bibekanana Das was found place as Additional Section Teacher in Pipli Aided High School with date of his joining 06.11.1989 having B.Sc. Qualification without B.Ed..Pipli High School was an Aided High School and full Aid was granted from 01.06.1994 as per OE Order 1994 annexed as Annexure -E of this counter.
But the petitioner‟s School, Khanua being the privately managed High School was recognized fully in the year 1996 by the Board and notified GIA by way of Block Grant as per OE Order 2004 w.e.f 01.01.2004. There is neither Section Teacher post in any of the Block Grant High Schools in the entire state including the petitioner‟s school nor the Govt, has approved the petitioner as untrained Section teacher in Khanua privately managed High School. There is provision of depositing some percentage of amount out of GIA in the provident fund accounts of the teaching and non-teaching staff of the fully Aided High Schools including the school of Bibekananda Das a per OE Order, 194 at Para - 6. But there is no such provision of Provident Fund Account System in Block Grant High Schools under OE Order 2004. (iii) In the O.E. Order, 2004.
(iii) it is mentioned unambiguously at para - 3 (a) under Annexure - D of this counter that GIA by way of Block Grant shall be admissible in respect of Posts held by qualified teachers appointed in conformity with the procedure laid down by the Govt, on the basis of approved staffing pattern.
The petitioner is an untrained Teacher (B.Sc) appointed by the invalid Managing Committee of Khanua privately managed High School as per detailed facts mentioned in Para -3 & Para -4 of this counter which requires no further elucidation here to kill the time of the Hon‟ble High Court,
(iv) The petitioner being an untrained hand (B.Sc.) is shown to have been appointed dated 30.05.1992 against TGT science post of Jhadeswar Vidyapitha, Khanua a privately managed High School in contravention to Section 6 (A) (i)(g)
(e) of OE Act, 1969 in order to obtain recognition by a false declaration. The petitioner did not have B.Ed. Qualification either on the date of getting recognition of the school in the year 1996 or at any time till filing of GIA Case No. Page 20 of 30 // 21 // 136/2004 and W.P(C) No. 863/2007 to be entitled to block grant under OE Order, 2004.
(v) Board‟s regulation Act 17 has been brought into force w.e.f 29.04.1977 which makes it obligatory for every institution to have teachers who must be a Trained Graduate. If subsequent to 29.04.1977 appointment has been made to the post of TGT contrary to the aforesaid provision of the regulation, then the said appointment would be an invalid appointment and would not confer any right on the appointee. Since the petitioner is an untrained hand till filing of GIA case No. 136/2004 and W.P(C) No. 863/2007, he has no right to continue in the school,
(vi) The judgment dated 08.01.1997 of the Hon‟ble High Court passed in OJC No. 370/96 Balaram Tripathy - Vrs - State is relied upon.
Sri Balaram Tripathy was appointed as Asst, teacher in Gopabandhu UchVidyapitha, Bolangir by the M.C. in the year 1984. At the time of his appointment, he was over age and untrained and as such his appointment was not approved by the Inspector of Schools concerned. Being aggrieved Sri Tripathy filed a petition in the Hon‟ble High Court in OJC No. 370/96 and the Hon‟ble High Court dismissed the writ petition on 08.01.1997. Sri Tripathy filed SLP (Civil) No. 6420-21/99 in the Apex Court. The Hon‟ble Supreme Court in their order dt. 04.02.2000 have also dismissed the SLP. The School and Mass Education Department, Orissa cireulated among all concerned vide letter dated 04.04.2000 that the appointments of the untrained and over age candidates appointed by the Managing Committee in Non-Govt. Aided High Schools shall not be approved as per copy of Govt, letter dated 04.04.2000 annexed as Annexure - F of this Counter. In face of the above two judgments, the judgment of State Education Tribunal vide Order dated 03.02.2006 in GIA Case No. 136/2004 taking into consideration of the ratio of Bibekananda Das for allowing this petitioner untrained scale of pay by approving his appointment is not just and proper.".
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// 22 // 5.13. Learned Addl. Government Advocate for the State accordingly contended that since the Petitioner at no point of time assailed the order passed by the Tribunal wherein the Tribunal directed for approval his services with release of grant-in-aid in untrained scale of pay w.e.f. 28.06.2010 in absence of any challenge made to the said order, Petitioner is not eligible and entitled to get the relief so far as it relates to release of untrained salary for the period from 01.01.2004 to 28.06.2010. 5.14. It is also contended that in the counter affidavit though a stand has been taken that claim of the Petitioner to get the benefit of TGT scale of pay on his acquiring the B.Ed. qualification has been considered and Petitioner has been found ineligible by Opposite Party No.3 in consideration of the proposal submitted by the School under Annexure-3-Series, the same has also not been assailed by the Petitioner, by filing appropriate application.
5.15. It is accordingly contended that on the face of the order passed by the Tribunal, so confirmed by this Page 22 of 30 // 23 // Court and the orders issued under Annexures-1 and 2 coupled with the stand taken in Para-15 of the counter affidavit, Petitioner is not eligible and entitled to get any relief as prayed for in the present Writ Petition.
6. To the stand taken in the counter affidavit, learned counsel appearing for the Petitioner made further submission taking into account the stand taken in the rejoinder affidavit. It is contented that on the face of the order passed by the Regional Director of Education vide order dtd.29.07.2003 in Appeal Case No.65 of 2001 under Annexure-4, when services of the Petitioner was neither approved nor he was allowed to join, Petitioner moved the Opposite Party No.3 by making a formal representation on 09.09.2004. 6.1. But claim of the Petitioner for approval of his services as an untrained Teacher was rejected by Opposite Party No.3 vide order dtd.21.09.2004 under Annexure-5. Challenging such order of Opposite Party No.3 and seeking approval of his services, Petitioner moved the Tribunal by filing GIA Case No.136 of 2004. Page 23 of 30
// 24 // The Tribunal vide order dtd.03.02.2006 under Annexure-6 while quashing the order dtd.21.09.2004, directed the State authorities to approve the appointment of the Petitioner and to give him grant-in- aid in the untrained scale of pay.
6.2. It is contended that when the order passed by the Tribunal was not complied with, Petitioner seeking compliance of the order approached this Court by filing W.P.(C) No.863 of 2007. This Court vide order dtd.25.09.2007 under Annexure-7 further directed the State authorities to implement the order passed by the Tribunal. However, pursuant to the orderd passed by this Court on 04.08.2009 and 03.05.2010 in CONTC No.371 of 2008 under Annexures-8 & 9, services of the Petitioner was approved vide order dtd.29.06.2010 under Annexure-2 in the untrained scale of pay. 6.3. However, since subsequent to such approval of the services of the Petitioner, Petitioner acquired the B.Ed. qualification, the result of which was published on 10.03.2014, Petitioner is not only eligible and entitled Page 24 of 30 // 25 // to get the benefit of TGT scale of pay w.e.f. 10.03.2014, but also he is entitled to get all benefit as prayed for in the Writ Petition.
6.3. It is also contended that on the face of the order passed by Opposite Party No.3 under Annexure-2, no further benefit is being extended by Opposite Party No.3 as due and admissible to the Petitioner.
7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner was initially appointed as against a trained graduate post by the Managing Committee of the School on 30.05.1992, wherein he joined on 15.07.1992. However, in terms of the letter issued by the Board of Secondary Education on 01.06.2001 under Annexure-C/3, when Petitioner was terminated by the Managing Committee vide its Resolution dtd.02.09.2001, Petitioner challenging such order of termination approached the Regional Director of Education in Appeal Case No.65 of 2001. Page 25 of 30
// 26 // 7.1. The said appeal was disposed of vide judgment dtd.26.04.2003 under Annexure-4, with a direction on the Managing Committee and the Headmaster of the School to allow the Petitioner to work in his former post. Opposite Party No.3 was also directed to forward the application of the Petitioner for his selection to B.Ed. course in the next academic sessions i.e. 2003-
04. 7.2. On the face of such order passed by the Regional Director, Petitioner was not allowed to join and his claim for approval of his appointment as an untrained Teacher was also rejected by Opposite Party No.3 vide order dtd.21.09.2004 under Annexure-5. 7.3. Challenging such rejection of his claim for approval of his services as an untrained Teacher, Petitioner approached the State Education Tribunal in GIA Case No.136 of 2004. The Tribunal vide order dtd.03.02.2006 under Annexure-6, while quashing order dtd.21.09.2004, directed the Opposite Parties to Page 26 of 30 // 27 // approve the appointment of the Petitioner and to give him grant-in-aid in the untrained scale of pay. 7.4. The said order when was not implemented, Petitioner approached this Court by filing W.P.(C) No.863 of 2007 and this Court vide order dtd.25.09.2007 under Annexure-7, directed the Opposite Parties to implement the order passed by the Tribunal. In terms of the said order passed by the Tribunal so confirmed by this Court and further order passed in CONTC No.371 of 2008, Petitioner vide order dtd.28.06.2010 under Annexure-1 was allowed to join in the School.
7.5. Subsequently vide another order issued on 29.06.2010 under Annexure-2, Opposite Party No.3 approved the services of the Petitioner and allowed him untrained scale of pay in the shape of block grant w.e.f. 28.06.2010. Thereafter when Petitioner acquired the B.Ed. qualification, the result of which was published on 10.03.2014, claim of the Petitioner to allow him trained graduate scale of pay was recommended by the Page 27 of 30 // 28 // School to Opposite Party No.3 vide letter dtd.29.04.2014 under Annexure-3-Series. But the same in the meantime was considered by Opposite Party No.3 and as found from the stand taken in Para- 15 of the counter affidavit, Petitioner has been found ineligible to get the benefit of trained scale of pay. 7.6. This Court after going through the nature of order passed by the Tribunal under Annexure-6, so confirmed by this Court under Annexure-7 and the order of approval issued vide order dtd.29.06.2010 under Annexure-2, finds no illegality or irregularity in the said order of approval issued by Opposite Party No.3 under Annexure-2. As per the considered view of this Court, the said order has been passed in compliance to the order passed by the Tribunal and further confirmed by this Court.
7.7. Since the order passed by the Tribunal was never assailed by the Petitioner and in terms of the said order further confirmed by this Court, the order at Annexure-2 was issued approving the services of the Page 28 of 30 // 29 // Petitioner as against the TGT post, but with untrained scale of pay w.e.f. 28.06.2010, this Court on the face of such order passed by the Tribunal and further order passed by this Court, is of the view that Petitioner is not eligible and entitled to get the benefit of untrained scale of pay w.e.f. 01.01.2004 to 28.06.2010. 7.8. Not only that claim of the Petitioner to get the benefit of trained scale of pay so recommended by the School vide Annexure-3-Series, since as found from the counter affidavit has been considered by Opposite Party No.3 and Petitioner has been found ineligible to get the benefit, unless and until such action of Opposite Party No.3 is challenged by the Petitioner, Petitioner is also not eligible and entitled to get the benefit of trained scale of pay w.e.f. 10.03.2014.
7.9. In view of the nature of order passed by the Tribunal under Annexure-6, so confirmed by this Court under Annexure-7, which was never assailed by the Petitioner at any point of time, this Court is of the view that the decisions relied on by the Petitioner as cited Page 29 of 30 // 30 // (supra) are not at all applicable to the facts of the present case. This Court accordingly is not inclined to entertain the Writ Petition with the prayer as made and dismiss the same. It is open for the Petitioner to take appropriate steps to get the benefit.
7.10. The Writ Petition stands dismissed with the aforesaid observation.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 21st March, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 07-Apr-2025 11:48:12 Page 30 of 30