Orissa High Court
Smt. Prativa Roy vs State Of Odisha And Others on 2 March, 2017
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.4532 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Smt. Prativa Roy ...... Petitioner
-Versus-
State of Odisha and others ...... Opp. Parties.
For Petitioner : M/s. S.Jena and S.D.Routray,
advocates
For Opp. Parties : Addl. Govt. Advocate
(for O.P.nos.1 and 2)
PRESENT:
THE HONOURABLE SHRI JUSTICE D.Dash
Date of hearing - 22.02.2017 : Date of judgment - 02.03.2017
The petitioner questioning the order of approval of her service
read with the corrigendum issued in that regard under Annexure-8 and 9
respectively prays for its quashment to the extent of modification of grant of
actual financial benefit as has been allowed from 14.2.2004 instead of
1.6.1994. Accordingly, she has further prayed for direction for release of the financial benefits for the period.
2. Facts necessary for the purpose of this proceeding are as under:-
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Mahanga Women's College, Pallisahi in the district of Cuttack having been established in the year 1983; it got concurrence from the session 1984-85 for +2 Arts classes. The said college came within the Grant-in-Aid fold with effect from 1.6.1994 as per the GIA order, 1994 by Govt. notification date 30.10.1996. Thus it became an aided college within the meaning of section 3 (b) of the Orissa Education Act, 1969 with the provisions of the Act and the Rules framed thereunder coming to apply.
The petitioner after due process of selection by the Governing Body had been appointed in the 1st post of Lecturer in History under appointment letter dated 8.8.1985. She joined on 10.8.1985 and as such was continuing to perform her duty. While so continuing, her service was terminated by the Governing Body with effect from 31.5.1991 and that according to the petitioner was illegal. Since the College was then unaided one, the petitioner preferred an appeal before the Director, Higher Education, Odisha (opp.party no.2), in consonance with the Govt. circular dated 27.3.1983 challenging the said order of termination of her service. The appeal was allowed with direction for reinstatement of the petitioner in service and payment of the arrear dues as per the order under Annexure-2. The Governing Body of the College being aggrieved by the same order carried an appeal to the Hon'ble Minister, High Education by filing memorandum of appeal which was numbered as Appeal Petition No. 02 of 1995. They became unsuccessful in that move. Said order was passed on 3 24.2.1996 under Annexure-3. Then though it was further assailed by carrying OJC No. 5980 of 1996, finally, it was withdrawn. The person claiming to have been appointed against the vacancy created in view of said termination of service of the petitioner also challenged the said order by filing an appeal. However, that has later been withdrawn when she accepted her posting/adjustment against the +3 Wing of the College and thus remained satisfied. Thereafter, the Governing Body by order dated 6.2.2004, allowed the petitioner to resume her duty and the petitioner thereafter joined on 14.02.2004. So finally, the order of the Director passed on 1.3.1995 was carried out by the Governing Body on 6.2.2004. The petitioner then worked as before in her former post i.e. 1st post of Lecturer in History.
After such joining, the matter was moved for due approval of the appointment of the petitioner and her service as against the 1st post of Lecturer in History in the said College. Proposal being sent, final order dated 29.12.2008, has been passed pursuant to the Govt. order dated 3.12.2008. However, the order is for release of Grant-in-Aid @ one third, two third and full cost with effect from 14.2.2004, 14.2.2006 and 14.2.2008 respectively. Such fixation of date for the purpose of release of the Grant-in- Aid payable to the petitioner on account of her service being approved with effect from 14.02.2004 instead of 1.6.1994 then again was questioned as arbitrary.
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It is her case that since she joined the service on 10.08.1985 and the institution being the Women's College, her entitlement falls under the Grant-in-Aid principles of 3, 5 and 7 years and in normal course, she had to receive the Grant-in-Aid as stipulated in the GIA order 1994 with effect from 1.6.1994 that is full cost of salary. It is also on the other way said that when the appellate authority had directed for payment of all her back wages while holding the order of termination of her service passed by the Governing Body to be illegal and directing her reinstatement; such approval orders dated 3.12.2008 read with corrigendum dated 29.12.2008 are illegal, arbitrary, unreasonable and in defiance to the order of the appellate authority passed on 1.3.1995 which having reached its finality, it was not open to be tinkered with any more. The petitioner thereafter had moved the Director for grant of financial benefits i.e. the full salary cost from 1.6.1994 by filing a representation on 3.4.2010. Since it was not responded to, the petitioner had moved this Court by filing W.P.(C) No. 3107 of 2011. Direction being given by this Court, the Director has again recommended the matter to the Govt. for payment of Grant-in-Aid in favour of the petitioner notionally @ 2/3rd from 1.6.1994 as per GIA order 1994 but for payment of actual financial benefits from 14.2.2004, it has been so allowed which is now impugned in this writ appliction.
3. The opp.party nos. 1 and 2 in the counter while admitting the factual aspects relating to the termination of service of the petitioner from 5 the 1st post of Lecturer in History in the College, standing quashed by the appellate authority and refused to be interfered by the Hon'ble Minister with the standing direction to allow the petitioner to discharge her duty in the College as such, has gone to state that the petitioner finally after the long drawn legal battle has been reinstated in her former post with effect from 14.2.2004 and therefore, the order relating to quantum of Grant-in-Aid admissible to the petitioner @ 2/3rd with effect from 1.6.1994 with actual financial benefit standing payable with effect from 14.2.2004 as also the subsequent order that pay of the petitioner is to be fixed @ 2/3rd with effect from 1.6.1994 notionally with actual financial benefit standing payable with effect from 14.2.2004 have been rightly passed.
4. In support of the above order, the provision of section 7 (5) of the Odisha Education (Amendment) Act, 1974 (Odisha Act-17 of 1974) has very much been relied upon and pressed into service. At this place for better appreciation, the relevant averments made by opp.party nos. 1 & 2 in third sub-para of para-7 be quoted as placed:-
"It is pertinent to submit here that there is a provision under Section 7(5) of O.E. (Amendment) Act, 1974 (Odisha Act-17 of 1974) in the matter of payment of salary consequent upon re-instatement/re-join of an incumbent in former service as explicit here as follow:-
"For removal of doubt it is hereby declared that on re-
instatement, a teacher shall not be entitled to any 6 emoluments for the period intervening between the date of termination of his service and the date on which he is reinstated but the said period shall be counted towards service."
In such view of matter, Govt. have been pleased to regularize the intervening period of services of the petitioner (i.e. date of termination to the date of reinstatement/re-joining from 02.07.1991 to 13.02.2004 as per Section-7(5) of Orissa Education (Amendment) Act, 1974 (Odisha Act- 17 of 1974) with all service benefits & released GIA @ 2/3rd w.e.f. 01.06.1994 with actual financial benefits from 14.02.2004 taking her joining on reinstatement from the said date vide Govt. letter No. 26835/HE dtd. 21.11.2014 which is not illegal and not bad in the eye of law."
5. The Odisha Education (Amendment) Act, 1974 receiving the assent of the Governor on first day of August, 1974 came into force on and from 3rd day of August, 1974 when it was published in the Extra Ordinary issue of the Odisha Gazette. Basically major portion of this amendment to the Orissa Education Act, 1969 as seen is relating to the termination of service of the Teacher of Aided Educational Institution. In so far as those institutions are concerned, the provision has been brought in by insertion of section 10-A in the Original Act of 1969 that the termination of service of the Teacher ('and other members' which has been subsequently brought in by Amendment Act No. 6 of 1984) of an aided Educational Institution has 7 to be with prior approval in writing of the Director in case of college, providing further the right of appeal to the person aggrieved by such order of termination with the approval i.e. the teacher or other member whose service is terminated with approval as above and that the appeal would lie to the Tribunal as constituted, providing time limit for the same. In the said Amendment Act of 1974, section 7 makes some provisions of savings in respect of past cases which as per the provision of sub-section 1 of said section are the cases where termination has been made after 03.05.72 and before the Amendment Act came into force i.e. 03.8.1974 while introducing section 10-A in the Original Act i.e. Odisha Education Act, 1969 and thus having nexus with the same.
6. When the challenge to the claim of the writ petitioner is in view of the provision of sub-section 5 of section 7 of the Amendment Act while introducing section 10-A of the Odisha Education Act, 1969 and basing upon that there has been the denial of the benefit as is claimed by the petitioner and the orders in that regard are said to be legal and justified, for better appreciation, let us have a look at the provision contained in section 7 of that Odisha Education (Amendment) Act of 1974 (Act-17 of 1974).
7. "Savings in respect of past cases- (1) Notwithstanding anything in any judgment, decree or order of any Court, but subject to the provisions hereinafter contained, the termination of the services of any teacher of an aided Educational Institution as defined in principal Act, made after the 8 3rd May, 1972 and before the date of commencement of this Act shall, if made without the approval of the Director or Public Institution (Higher Education) the case of a College Teacher and of the Director or Public Instruction (Schools) in the case of a school teacher, be inoperative.
(2) The Managing Committee or the Governing Body of the concerned institution shall refer the case of the said teacher to the Director of Public Instruction (Higher Education) or the Director of Public Instruction (Schools), as the case may be, within one month from the date of commencement of this Act for obtaining his approval and thereupon the provisions of Section 10-A of the principal Act as amended by this Act shall, mutatis mutandis, apply:
Provided that whether the Managing Committee or the Governing Body, as the case may be, fails to make a reference in accordance with this Sub-section, the order of termination of the services of the teacher shall become void and the teacher shall be deemed to have been reinstated in service with effect from the day following the date of expiry of the aforesaid period of one month.
(3) Where any such termination as is referred to in Sub-section (1) was made with approval of the Director of Public Instruction (Higher Education) or the Director of Public Instruction (Schools), as the case may be, the concerned teacher may prefer an appeal to the Tribunal constituted under the principal Act as amended by this Act within one month from the date of constitution of the Tribunal.
(4) Where, on a reference made under Sub-section (2), the Director refuses to accord approval and no appeal is referred to the Tribunal against the order of refusal, the concerned teacher shall be reinstated with effect the date of such order.
(5) For removal of doubt, it is hereby declared that on re-instatement a teacher shall not be entitled to any emoluments for the period intervening between the date of termination of his service and the date on which he is re-
instated but the said period shall be counted towards service."
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8. The marginal note to the section is "Saving in respect of past cases". 'Past cases' as has been provided in sub-section 1, are those cases of termination of service of teachers taking place from 4.5.1972 to 2.8.1972. Sub-section 2 provides that in such cases the Managing Committee or the Governing Body as the case may be of the concerned institution within one month from the date of commencement of the Amendment Act has to take the approval and in case no such matter of approval is referred to, the termination would be deemed to be void on expiry of the period of one month.
Sub-section 3 then provides that in case a reference is made in such matter and the approval is given, the concerned teacher has a right to file an appeal before the Tribunal constituted under the Act.
Sub-section 4 similarly provides that in case the approval is refused, the right of appeal is there with the Managing Committee or the Governing Body as the case may be to file an appeal before the Tribunal. Next sub-section 4 says that in such cases where reference being made under the provision of sub-section 2, the approval is not accorded and no appeal is filed obviously by the Managing Committee or the Governing Body as the case may be against such refusal then the concerned teacher shall be reinstated with effect from such order that is the order by which the Director refuses to accord approval to the termination of service. So it is clear that in such cases where the refusal of according approval to the 10 termination of service is made and is accepted by the Governing Body or Managing Committee as the case may be, there has to be the reinstatement of said teacher.
Last sub-section 5 then provides that on re-instatement a teacher shall not be entitled to any emoluments for the period intervening between the date of termination of his service and the date on which he is re-instated but the said period shall be counted towards service. The reinstatement thus remain confined to the aforesaid eventuality.
First of all, when at last sub-section 5 has been introduced for removal of the doubt, it can never have its play beyond the arena as provided in sub-section 1 i.e. to cases other than those where termination of service made in between from 4.5.1972 to 2.8.1974. Secondly, this provision has only the applicability to the cases which eventually falls within the provision of sub-section 4. In so far as the other cases are concerned i.e. the cases wherein approval to the termination of service of a teacher or staff of an aided educational institution is given and then is questioned by the concerned teacher in the Tribunal or where the approval is refused and it is questioned by the Governing Body or Managing Committee as the case may be, before the Tribunal, the matter relating to reinstatement would remain within domain of the Tribunal to take a decision in accordance with law. Obviously, the Tribunal in that event has to take a final decision and pass necessary order as regards the payment of 11 emoluments for the period intervening the date of termination of his service and the date on which he is re-instated as also regarding the treatment and counting said period if would be towards service or not.
9. On a conjoint reading of the provision contained from sub- section 1 to sub-section 5 of section 7 of the Odisha Education (Amendment) Act, 1974, I have the least hesitation to say that the provision of sub-section 5 does never get attracted in so far as the present case is concerned. I am thus afraid to accept the contention of State as raised in the counter as also the submission of learned counsel for the State in refuting the claim of the petitioner in this way by banking upon the provision of sub-section 5 of section 7 of Odisha Act-17 of 1974 while introducing section 10-A in Original Act.
10. Now adverting to the case, admittedly when the order of termination of service was made the college was not an aided one. So as per the Govt. circular the petitioner had questioned the said termination by filing appeal before the Director which had been allowed directing the Governing Body to reinstate the petitioner with full back wages or arrear of salary long before the College became an aided one. It was not a case where thus the Governing Body as per section 7(2) of the Odisha Act-17 of 1974 was not to refer the matter of termination for approval.
The College has been notified as an aided educational institution for +2 wing w.e.f. 1.6.1994 vide Govt. Notification dated 12 30.10.1996. The Grant-in-Aid under direct payment scheme in favour of admissible post held by different persons has been sanctioned by Govt. order dated 05.3.1999. Finally Govt. order dated 17.3.1999 has been passed in terms of paras 9(3), 10(1)(4)(i)(ii)(iii) and 16 (1) of Grant-in-Aid order, 1994 approving the appointment of those teaching and non-teaching staff of the College for direct payment of salary.
So by the time the order was passed approving the appointment of the teaching and non-teaching staff of the College for direct payment of salary, there being no legal impediment for the petitioner to be allowed to join and after necessary verification of record her appointment ought to have been approved and as such ought to have been found place in the Govt. order dated 17.3.1999 as Lecturer in History 1st post with other required details as per her legal entitlement. Even by then, the Hon'ble Minister had already disallowed the appeal i.e. on 24.2.1996 holding the same as not maintainable in the eye of law. So it is not understood as to how even then the petitioner on proper verification of record was not issued with any letter to join.
At this juncture, it is felt apposite to further address the next ground of challenge to the petitioner's claim being made at a belated stage banking upon the ratio decided by the Apex Court in the case of Union of India vrs. Tarsem Singh; 2008(8) SCC 648.
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In that case the petitioner had approached the Court for grant of disability pension in the year 1999 after having been invalidated out of army service in medical category on 13.11.1983. The court initially restricted the relief to thirty eight months prior to filing of the writ petition which being challenged in appeal, the court granted the same from when it fell due with interest @ 6% per annum. In that factual setting the Apex Court taking note of delay of sixteen years in approaching the court applied the principles relating to recurring/successive wrongs for the claim of recovery of arrears for a past period. In that view of the matter the Apex Court found fault with the order of the High Court in appeal in directing payment of arrears relating to sixteen years and that too with interest.
The facts of the instant case are quite different. In this case the petitioner in spite of her being successful in getting the order of termination set at naught was not allowed to join and even when the State approved the service of other staffs similarly situated with the petitioner, the case of this petitioner was not considered for her joining. The petitioner in the factual matrix of the case cannot be held guilty of causing any delay and no such latches on her part gets attributed. So the ratio of above cited case does not stand in the way of entitlement of the petitioner.
11. For the aforesaid discussion and reasons, I thus find that the order under Annexures 8 and 9 are liable to be quashed to the extent that the writ petitioner is entitled to receive the actual financial benefits w.e.f. 14 17.03.1999. The opposite parties are directed to accordingly modify the orders under Annexures 8 and 9.
Since the petitioner has in the meantime retired, the opp. parties are directed to complete the exercise culminating with the payment of arrear salary to the petitioner within a period of four months hence.
12. The writ application is accordingly allowed in part.
No order as to cost.
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D.Dash, J.
Orissa High Court, Cuttack, Dated 2nd March, 2017/AKS