Orissa High Court
Baijayanti Nayak vs State Of Odisha & Others ... Opposite ... on 19 October, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.34453 of 2021
Baijayanti Nayak .... Petitioner
Mr./Ms. S. Routray, S.K.
Samal, S.P. Nath, S.Sekhar, J.
BIswal, A.K. Das, M. Panda, Advocates
-versus-
State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. B. Panigrahi, ASC (for Opp. Party Nos.1to 3) Mr. M.K. Mohanty, T.Pradhan, A. Mohanty, Advocates (for Opp. Party Nos.3 & 4 ) W.P.(C) NO.25592 of 2022 Minati Ratha .... Petitioner Mr. S. Jena, B. Mishra, Advocates.
-versus-
State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. B. Panigrahi, ASC (for Opp. Party Nos.1 to 5) Ms. S. Panda, S. Thakur, S. Panda, R. Dash, Advocates (for Opp. Party No.6) W.P.(C) NO.8973 of 2023 Adikanda Dey .... Petitioner Mr. S.C. Devdash,S.C. Padhi, J.R. Khuntia, Adv.
-versus-
State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. M.K. Balabantaray, AGA Mr. S. Rath, ASC (for Opp. Party Nos.1 to 3) // 2 // Mr. S.K. Das, P.K. Behera, N. Jena, Advocates (for Opp. Party No.4) W.P.(C) NO.23146 of 2023 Mir Samiruddin .... Petitioner Mr. S. Routray, S. Sekhar, J.
Biswal, A.K. Das, S.P. Nath, Advocates
-versus-
State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. S.K.Samal, AGA Mr. B. Panigrahi, ASC W.P.(C) NO.25468 of 2023 Mir Samiruddin .... Petitioner Mr. S.K. Samal, S.P. Nath, S.D. Routray, S. Sekhar, J.
Biswal, A.K. Das, Advocates
-versus-
State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA W.P.(C) NO.26243 of 2023 Principal In Charge cum Secy., .... Petitioner Luipa Degree Mohavidyalaya, Mr.S.K. Das, P.K. Behera, N. Mayurbhanj Jena, Advocates
-versus-
State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. S.K. Samal, AGA Page 2 of 24 // 3 // PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
--------------------------------------------------------------------------------------- Date of Hearing: 02.09.2023 and Date of Judgment: 19.10.2023
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Since while taking up all these matters, learned counsel for the State raised the preliminary objection with regard to the applicability of the provisions contained under Orissa Education (Recruitment and Conditions of Services of Teachers and Members of the Staffs of Aided Educational Institutions) Rules, 1974 (in short, <The Rules=) to the employees who are in receipt of Grant-in-Aid in the shape of Block Grant under different Grant-in-Aid Orders, save and except, under G.I.A Order,1994, all the matters were heard on the issue as to whether the provisions contained under the 1974 Rules is mutantis mutandis applicable to the teaching and non-teaching staffs of aided Educational institutions, who are in receipt of grant-in-aid under different Grant-in-Aid Orders, save and except, under G.I.A Order, 1994 in shape of block grant.
2. Mr. B. Routray, learned Sr. Counsel along with Mr. Sameer Ku. Das, learned counsel appearing for the Page 3 of 24 // 4 // Petitioners in support of the stand that the 1974 Rules also mutantis mutandis applicable to the employees working in different Aided Educational Institutions and in receipt of grant-in-aid under different Grant-in-Aid orders, save and except GIA Order, 1994, contended that the 1974 Rules came into force w.e.f 01.04.1975, pursuant to the publication in the Orissa Gazette Extraordinary dt.12.02.1974. It is contended that the aforesaid 1974 Rules was framed under the provisions of Orissa Education Act, 1969 (in short <The Act=). Rule 2(a) of the aforesaid 1974 Rules provides that the Act means the Odisha Education Act, 1969 (Odisha Act 15 of 1969).
3. It is contended that as provided under Rule-20 of 1974 Rules, different penalties for good and sufficient reasons can be imposed on an employee of an Aided Educational Institution. Similarly, as provided under Rule-21 of the Rules, it is the Director, who is competent to impose any of the penalties specified in Rule-20 on any employee. Rule- 21(2) of the Rules provides that without prejudice to Sub-rule (1) but subject to the provisions of Sub-Rules(3) & (4), any of the penalties specified in Rule-20 may be imposed in respect of lower grade employee, by the Headmaster or the Principal, as the case may be and in respect of any other employee, by Page 4 of 24 // 5 // the Managing Committee or the Governing Body, as the case may be.
3.1. The 1st Proviso to Rule 21(2) provides that in case of suspension of an employee falling under Clauses-(a) & (b) of Rule 20, prior approval of the Inspector in respect of any employee serving in a School and of the Director in relation to any other employee is required to be obtained.
The 2nd proviso to Rule 21(2) provides that the Managing Committee or the Governing Body, as the case may be, may place an employee under suspension at the initiation of disciplinary proceedings for a period of thirty days, pending approval of Inspector or the Director, as the case may be.
3.2. Similarly, it is contended that as provided under the proviso to Sub-rule(4) of Rule 22 where the employee concerned is a Headmaster or a Principal, the Director may, on an application by the Managing Committee or the Governing Body, as the case may be, appoint an Officer of the Government holding an equivalent post to conduct the enquiry. As provided under Sub-rule-(12) of Rule 22, the disciplinary authority under Sub-rule-2 of Rule 21 shall forward the record of enquiry together with a copy of orders passed under Sub-rules(9),(10) or (11) to the Director for his advice. As provided under Sub-rule-13, on receipt of the Page 5 of 24 // 6 // advice of the Director, the disciplinary authority under Sub- rule (2) of Rule-21 shall consider the advise and determine the penalty, if any, to be imposed on the employee and pass appropriate order on the case.
3.3. Placing reliance on the aforesaid provisions contained under 1974 Rules, learned counsels appearing for the Petitioners contended that 1974 Rules is applicable to the Teachers and Members of the staff of Aided Educational institutions. It is contended that the term <Aided Educational Institution= is defined under the provision contained under Section-3(b) of the Act. Section-3(b) of the Act defines Aided Educational Institution means <private educational institution which is eligible to, and is receiving Grant-in-Aid from the State Government, and includes an educational institution which has been notified by the Government to receive grant- in-aid.= Similarly, Section 7-C (1) of the Act provides that the State Government shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private Educational Institution in the State.
It is contended that as provided under Section 10-A of the Act, services of teachers of aided Educational Institutions shall not be terminated without obtaining the prior approval in writing of the Director in the case of a teacher of a college; Page 6 of 24
// 7 // and of the C.I of Schools in the case of a teacher of a school. The 1974 Rules was framed in terms of the provisions contained under Section-27 of the Act.
3.4. Learned counsels appearing for the Petitioners contended that 1974 Rules was framed in terms of the provisions contained under Section-27 of the Orissa Education Act and it is to be made applicable to the teachers and members of the staff of Aided Educational Institutions as defined under Section-3(b) of the Act.
3.5. It is contended that members of the Staff of Aided Educational Institutions were extended with the benefit of grant-in-aid initially in terms of the provisions contained under the Grant-in-Aid order, 1994. The aforesaid 1994 order was also framed in terms of the provisions contained under the Orissa Education Act, 1969. But while continuing with the benefit under GIA Order, 1994, Orissa( non-Govt. Colleges, Jr. Colleges and Higher Secondary Schools), Grant- in-Aid Order, 2004 came into existence w.e.f 05.02.2004. The aforesaid GIA Order, 2004 was also framed under the provisions of Orissa Education Act, 1969. 3.6. As provided under Paragraph-3 of GIA Order, 2004, every private educational institution being a Non-Govt. College, Jr. College or Higher Secondary School which has become eligible by 1st June 1994 to be notified as Aided Page 7 of 24 // 8 // Educational Institution pursuant to the Grant-in-Aid Order, 1994 shall be notified by the Government as required under clause-(b) of Section-3 of the Act and the institution so notified shall be entitled to receive grant-in-aid, by way of block grant, determined in the manner provided in sub-para
2. It is contended that the aforesaid Grant-in-Aid order, 2004 was brought into existence by repealing the provisions of Grant-in-Aid order, 1994.
3.7. It is further contended that while continuing with the benefit of Grant-in-Aid under GIA Order,2004, GIA Order, 2008 came into existence w.e.f 20.01.2009 in terms of the provisions of Odisha Education Act, 1969. As like GIA Order, 2004, under paragraph-3 of GIA Order, 2008, some of the non-Govt. educational institutions were made eligible for consideration of receipt of Block Grant for being notified as Aided Educational Institution under Section-3(b) of the Act. 3.8. Similarly, Grant-in-Aid Order, 2009 was also framed in accordance with the provisions contained under Orissa Education Act and under paragraph-3 of GIA Order, 2009, employees of teaching and non-teaching staffs of different categories of educational institutions were notified as Aided Educational Institutions in terms of provisions contained under Section-3(b) of the Act, those who have not received Page 8 of 24 // 9 // Grant-in-Aid or Block Grant and were made eligible for consideration of receiving block grant for its employees. 3.9. Learned counsel appearing for the Petitioners further contended that with the promulgation of Orissa (Aided Colleges, Aided Jr. Colleges and Aided Higher Secondary School), Grant-in-Aid Order, 2017 which was framed in exercise of the powers conferred under sub-section 4 of Section-7-C of the Act, the same was made applicable to the employees who are governed under the provisions of Grant- in-Aid Order, 2008 and Grant-in-Aid Order, 2009. 3.10. It is contended by the learned counsels appearing for the Petitioners that the benefit of Grant-in-aid Order starting from G.I.A Order 1994 to G.I.A Order 2017 was made applicable to the employees working in different Aided Educational Institutions. In view of the definition given to an Aided Educational Institution under Section 3(b) of the Act, there is no difference in respect of an Aided Educational Institution in receipt of Grant-in-Aid under GIA Order, 1994 and in respect of employees in receipt of Block Grant under GIA Order, 2004 onwards. It is accordingly contended that since the very basis to receive Grant-in-Aid is that the institution must be an Aided Educational Institution in terms of the provisions contained under Section 3(b) of the Act, no differentiation can be made in respect of an employee working Page 9 of 24 // 10 // in an Aided Educational Institution in receipt of Grant-in-Aid under GIA Order, 1994 and in respect of employees in receipt of Block Grant under GIA Order, 2004 onwards. 3.11. Since 1974 Rules is applicable to the members and the staffs of Aided Educational Institution within the meaning of the definition of Section 3(b) of the Act, there cannot be any discrimination with regard to the applicability of the 1974 Rules to the employees in receipt of Grant-in-Aid under GIA Order, 1994 and the employees in respect of Block Grant under GIA Order, 2004 onwards. Learned counsel for the Petitioners contended that since the employees working in different educational institutions and in receipt of Grant-in- Aid under GIA Order, 2004 onwards are employees of Aided Educational Institutions within the meaning of Section-3(b) of the Orissa Education Act, the 1974 Rules mutatis mutandis also apply to such employees and there cannot be any discrimination with regard to its applicability to such employees.
On the question of discrimination, learned counsels appearing for the Petitioners relied on the decisions of the Hon'ble Apex Court in the case of D.S. Nakara and others V. Union of India, AIR 1983 S.C 130 and State of Orissa & Another Vs. Mamata Mohanty, (2011) 3 Supreme Court Cases 436. In the Constitution Bench decision, in the case Page 10 of 24 // 11 // of D.S. Nakara, Hon'ble Apex Court in Paragraph Nos.6 & 7 has held as follows:
6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
7. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act."
13. The other facet of Art. 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that Art. 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in EP.
Royappa v. State of Tamil Nadu(1), it was held that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under:
"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
14. Justice Iyer has in his inimitable style dissected Art. 14 as under
The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-Page 11 of 24
// 12 // errants of 'executive excesses'-if we may use current cliche-can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; be you ever so high, the law is above you."(2) Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi & others etc. (3) held that it must, therefore, now be taken to be well settled that what Art.14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art.
14. After a review of large number of decisions bearing on the subject, in Air India etc. etc. v. Nargesh Meerza & Ors. etc etc. (1) the Court formulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Art. 14 is certainly attracted where equals are treated differently without any reasonable basis.
15. Thus the fundamental principle is that Art. 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differntia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
16. As a corrolary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved ? The thrust of Art. 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Art. 14. The court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may Page 12 of 24 // 13 // accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. The International Airport Authority of India & Ors.(1) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
Similarly, in the case of Mamata Mohanty, Hon'ble Apex Court in Paragrah 50 has held as follows:
50. In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily. Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statutory. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (vide Matajob Dobey v. H.S. Bhari and State of Karnataka v. Vishwabharathi House Building Coop. Society.) 3.12. It is contended that since as provided under Seciton-
7(C) of the Act, the State Government within the limits of its economic capacity set apart, a sum of money for being given as grant-in-aid to private educational institutions in the State, no difference can also be made in respect of an employee getting Grant-in-Aid under GIA Order, 1994 and in respect of an employee in receipt of block grant under GIA Order, 2004 onwards. It is also contended that by repealing the provisions of GIA Order, 1994, GIA Order, 2004 came into Page 13 of 24 // 14 // existence and by repealing the provisions of GIA Order, 2004, GIA Order, 2008 came into existence. But in all those Grant- in-Aid orders starting from GIA order 1994, the very basis to receive Grant-in-Aid is that the employee concerned should be an employee of an Aided Educational Institution. Under Section-3(b) of the Act, no differentiation has been made to an employee in receipt of Grant-in-Aid under GIA Order, 1994 and in respect of an employee in receipt of Block Grant under GIA Order, 2004 onwards. It is accordingly contended that in view of the provisions contained under Section 3(b) of the Act read with Rule-7-C of the said Act, the employees working in Aided educational institutions getting the benefit of Grant-in- Aid under GIA Order, 2004 onwards are also eligible and entitled to be covered under the provisions of 1974 Rules. 3.13. In support of such submission, learned counsels appearing for the Petitioners relied on a decision of this Court passed in the case of Ritanjali Giri Vs. State of Orissa and others, 2016 (I) ILR CUT 1162. Interpreting the provisions of Section 3(b) of the Act, this Court held that the Act does not make any distinction between the Full Grant school or Block Grant school. Moreover, the private educational institution which has been notified by the State Government to receive grant-in-aid is an Aided Educational institution. Page 14 of 24
// 15 // The view expressed by this Court in Para-5,6 & 7 of the Order in the case of Ritanjali Giri are quoted hereunder.
5. The sole question that hinges for consideration is as to whether the benefit of the Scheme applies to the family members of an aided educational institution, which is receiving Block Grant?
6. Section 3(b) of the Orissa Education Act, 1969 defines the Aided Educational Intuitions, which is quoted hereunder.
<3(b) Aided Educational Intuitions means private educational institution which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in-aid.
7. On a bare perusal of the aforesaid provision, it is abundantly clear that private educational institution which is eligible to, and is receiving grant-in-aid from the State Government to receive grant-in-aid is an aided educational institution. The Act does not make any distinction between the full Grant School or lock Grant School. Moreovoer, the private educational institution which has been notified by the State Government to receive grant-in-aid is also an aided educational institution. The application of the petitioner was rejected by the opposite party NO.4 on untenable and unsupportable ground. In view of the above discussion, this Court has no option but to quash the order dated 13.07.2012 passed by the District Education Officer, Balasore, Opposite Party No.4. The matter is remitted back to the opposite party No.4. The opposite party NO.4 is directed to consider the application of the petitioner within a period of three months from the date of production of a certified copy of this order. The writ petition is allowed. No costs.= 3.14. Learned counsel for the Petitioners is also relied on another decision of this Court in the case of Sarat Ch. Parida Vs. State of Orissa, 2015(2) ILR CUT 94. This Court relying on the provisions contained under Section-3(b) of the Act held that an employee getting salary from the Government under GIA Order, 1994 and getting salary in shape of Block Grant will also be covered under the provisions of Orissa (Aided Educational Institutions' Employees Retirement Benefit )Rules, 1981. This Court took such a view in the case of Sarat Chandra Parida as the Page 15 of 24 // 16 // benefit of 1981 Rules was not extended in favour of employees getting the benefit of Grant-in-Aid in the shape of block grant under GIA Order, 2004 onwards. The view of this Court contained in Paragraphs- 5 & 7 are quoted hereunder.
"5. The 1981 Rules have been framed by the State Government with the object of providing social security to the staff of aided educational institutions. The Rules came into force on 01.04.1982 vide S.R.O NO.118/82 published in Orissa Gazette Ext. No.234 dated 20.02.1982.
Rule-3 speaks about the applicability of the Rules which is extracted hereunder:
<3. Application of the rules:- These rules shall apply to teaching and non-teaching staff of all recognized non- Government Colleges, High Schools, Senior Basic Schools and M.E. Schools which come under the direct payment system and all non-Government Primary Schools including Sanskrit Tols and Junior Basic Schools fully aided Government in Education and Youth Services Department directly through Panchayat Samities constituted under the Orissa Panchayat Samiti Act, 1959 or through a Notified Area Council or Municipal constituted under the Orissa Municipal Act, 1950.
Provided that Government may, be general or special order may be issued in that behalf, specify and other educational institutions or category or institutions and the staff working therein to whom the rules shall apply.=
7. For application of 1981 Rules to the staff of recognized non-government colleges, Rule-3 thereof requires that the college concerned must have come under the <direct payment system=. This apart there is no other requirement. The plain language of Rule-3 makes it clear that irrespective of the nature of grant-in-aid given by the Government to various staff of a collage, once the college has required status of one coming under the direct payment system then even if a staff is not getting full salary from the Government under the direct payment system or getting only some aid in whatever form including 8block grant9, he will be covered under the Rules and be entitled to pensionary benefits under the Rules taking into account the amount of aid he receives from the Government as salary and the period of his qualifying service. It is apparent from a plain reading of Rule-3 that the expression, <come under the direct payment system= qualifies the institution (college/school) concerned and not a particular staff of the institution. Had it been the intention of the legislature that the expression would qualify the 8staff9, then it could have simply said that the staff of aided institutions who are/were receiving their salary under the direct payment system will be covered under the 1981 Rules. It is admitted by the opposite Page 16 of 24 // 17 // parties in their counter affidavit that SVM College, where the Petitioner was working, is an aided college which came under the direct payment scheme. It is also admitted that petitioner9s appointment was approved under the Grant-in-Aid Order, 2009 against the post of Library Attendant from the date if became admissible and he was extended block grant @ 100%. Since the petitioner is a non-teaching staff whose appointment has been approved against an admissible post (Library Attendant) and he has been allowed grant-in-aid in the nature of block grant, he cannot be denied the benefits of 1981 Rules. Therefore, the order of the Director under Annexure-9 refusing pensionary benefits to the Petitioner is unsustainable and the same is hereby quashed. It is directed that the pension case of the petitioner be considered in accordance with the 1981 Rules and disposed of within a period of four months.= 3.15. Learned counsels appearing for the Petitioners also relied on the decisions of this Court rendered in the case of Radharani Samal Vs. State of Orissa, reported in 123 (2016) CLT 218 wherein the benefit of Rule 17 of the 1974 Rules was made applicable to the employees in receipt of Block grant. This Court in Paragraphs-3 & 9 of the case in Radharani Samal has held as follows.
"3. It is submitted by the learned counsel for the Petitioner that by virtue of Annexure-7, the clarification dated 16.04.2010 issued by the Joint Secretary to Government/School and Mass Education Department, the untrained graduate teachers in Government/Non-Government M.E. and High School on attaining the age of 48 years/are eligible to get trained graduate scale of pay. He drew the attention of the Court to Annexure-B, the letter issued by the Deputy Director(NGS)/Orissa/Directorate of Secondary Education/Orissa to all the Inspectors of Schools to submit the proposal on the cases in which the Managing Committee of Block Grant High Schools have appointed persons against such posts to accord permission by the Government to approve such all such posts. He also further drew the attention of this Court to Annexure-9 where the Head Mistress of Banarnali Brahmachari Girls9 High School has recommended the case of the Petitioner to the concerned Inspector of School to allow her to draw salary as trained teacher as the petitioner has attained the age of 48 years having requisites qualification in accordance with the circular as stated above. With reference to the rejoinder affidavit dated 03.09.2014 filed by the Petitioner to the counter filed by Opposite Party NO.3, he further submits that similarly situated persons have already been paid the necessary differential salary as well as current salary vide No.632 dated 6.2.2014 issued by the DEO, Kalahandi and Office Order No.11007 dated 3.9.2013 issued by the D.E.O., Page 17 of 24 // 18 // Cuttack. So, he submits that there should not be discrimination between the petitioner and her colleagues and accordingly, the petitioner should be paid the differential salary as well as current salary.
9. Keeping in view the aforesaid discussions, this Court is of the view that the Petitioner is entitled to trained graduate scale of pay and consequences. Accordingly, the opposite parties 2 and 3 are directed to fix up the scale of pay of the petitioner in trained graduate scale of pay notionally when he attains the age of 48 years, i.e., July, 2011, calculate the differential salary and disburse the same as well as current salary within a period of two months from the date of production of a certified copy of this order failing which the petitioner is entitled for the same amount with interest at the rate of 9% per annum from the date of his entitlement till actual payment.
3.16. Learned counsels appearing for the Petitioners accordingly contended that in view of the of decision of this Court as cited (supra), some of the provisions of 1974 Rules have been made applicable to employees of aided educational institutions in receipt of Block Grant. It is accordingly contended that the provisions contained under 1974 Rules be made applicable to the employees of aided educational institutions in receipt of block grant in full.
4. Mr. R.N. Mishra, learned Addl. Govt. Advocate while supporting the stand of the Opp. Parties that the 1974 Rules is not applicable to the employees working in Aided Educational institutions and in receipt of block grant contended that while enacting the provisions of 1974 Rules, it was clearly indicated under Rule-2 that they shall come into force on such date as the Government may, by order, appoint on that behalf. Proviso to Rule-2 provides that they shall be within the competence of the Government to appoint different dates in respect of different categories of aided Educational Page 18 of 24 // 19 // Institutions. Relying on the proviso to Rule-2, learned Addl.
Government Advocate contended that since there is difference in between the extension of benefit of grant-in-aid under GIA Order, 1994 and GIA Order, 2004 onwards and no notification having been issued by the Government by entitling the employees in receipt of Grant-in-Aid under GIA Order, 2004 onwards to be eligible to be covered under 1974 Rules, the aforesaid 1974 Rules cannot be made applicable to the employees of Aided Educational Institutions, who are in receipt of Block Grant.
4.1. Learned Addl. Govt. Advocate further contended that as provided under Rule-8(3) of the 1974 Rules, vacancies as against the post of Headmaster of aided boys high School including Principals of aided colleges under the system of direct payment of full salary cost shall be filled up by eligible Trained Graduate Teachers from respective categories of high schools and headmasters and headmistress of respective categories of Middle M.E. Schools and the lecturers belonging to the common cadre of the Aided colleges as the case may be, from the select list prepared by the Selection Board in the manner prescribed in the Regulation framed by the Selection Board for that purpose.
4.2. It is contended that since the employees working in different Aided Educational Institutions, who are in receipt of Page 19 of 24 // 20 // Block Grant are not getting full salary cost under the direct payment scheme and not covered under the common cadre, so framed by the Government in terms of the Rule-8(3) of the 1974 rules, the benefit of 1974 Rules cannot be extended to such employees who are in receipt of Block Grant. It is contended that employees coming under the provisions of GIA Order, 1994 are getting the full salary cost under the direct payment scheme and the employees who are in receipt of Block Grant are yet to get the benefit of full salary cost under the direct payment system.
4.3. It is also contended that even after promulgation of GIA Order, 2017, the employees working in aided educational institutions and getting the benefit of Block Grant under GIA Order, 2004 onwards are not getting full salary cost, which has been received by the employees extended with the benefit under GIA Order, 1994. It is also contended that even though the employees working and in receipt of Grant-in-Aid under G.I.A order, 1994 and in receipt of Block Grant under GIA Order, 2004, onwards are coming within the definition of aided educational institutions, as provided under Section-3(b) of the Act, but since the employees are not in receipt of full salary cost, which is sine qua non for their eligibility to be covered under the 1974 Rules, the said employees cannot get the benefit of the provisions contained under 1974 Rules. Page 20 of 24
// 21 // 4.4. It is also contended that since as provided under Section-10(C) of the Act, the employees working in Aided Educational Institutions and in receipt of Block Grant are not included in the common cadre and such employees having not in receipt of full salary cost under the Direct Payment Scheme, the benefit of 1974 Rules can only be made applicable to the employees of aided educational institutions, who are in receipt of full salary cost under the Direct payment Scheme and not to any other categories of employees in receipt of any grant under any of the Grant-in-Aid order, so promulgated after GIA Order, 1994.
5. To the aforesaid submission of learned Additional Govt. Advocate, learned counsels appearing for the Petitioners contended that since there is no dispute with regard to the fact that the employees in receipt of full salary cost under GIA Order, 1994 and the employees in receipt of Block Grant under GIA Order, 2004 onwards are employees of Aided Educational Institutions within the meaning of Section 3(b) of the Act and 1974 Rules being applicable to the employees of Aided Educational institutions, the stand taken by the leaned Addl. Govt. Advocate that the employees working under block grant institutions since are not coming within the common cadre and accordingly they cannot get the benefit of 1974 Rules, is not acceptable. It is also contended that no Page 21 of 24 // 22 // notification as such has also been issued by the Government making the 1974 Rules applicable to the employees of aided educational institutions in receipt of Full Salary Cost under the Direct Payment Scheme of GIA Order, 1994. It is also contended that payment of Grant-in-Aid is regulated under Seciton-7-C of the Act and there is no difference in between the Grant-in-Aid received by the employees under GIA Order, 1994 and the Block Grant in receipt of the employees under GIA Order, 2004 onwards. It is contended that since the admissibility of the 1974 Rules is in respect of an employee of an aided educational institution and the benefit of grant-in- aid starting from G.I.A Order 1994 onwards have been made applicable to employees of aided educational institution within the meaning of Section 3(b) of the Act, the provisions contained under 1974 Rules is also applicable to the employees of aided educational institution in receipt of Block Grant.
6. I have heard Mr. B. Routray, learned Sr. Counsel along with Mr. Sameer Ku. Das and other learned counsels appearing for the Petitioner and Mr. S.K. Samal, learned Additional Government Advocate.
7. Having heard learned counsel for the parties and after going through the materials available on record and the submissions made, this Court finds that 1974 Rules was Page 22 of 24 // 23 // framed by making it applicable to the employees of Aided Educational Institutions. Placing reliance to the definition given to the term <Aided Educational Institutions= under Section-3(b) of the Act and the power of the State Government to extend the benefit of Grant-in-Aid to private Educational Intuitions in the State in terms of Section 7-C of the Act, this Court is of the view that employees who are in receipt of Grant-in-Aid under 1994 GIA Order and employees who are in receipt of Block Grant under GIA Order, 2004 onwards are employees of aided educational institutions within the meaning of Section 3-(b) of the Act. Since the State Government after extending the benefit of Grant-in-Aid under GIA Order, 1994 faced difficulty in extending Full Salary Cost, the benefit of Block Grant was introduced by framing GIA Order, 2004 with the repeal of GIA Order, 1994. Therefore, as per the considered view of this Court that the employees in receipt of Full Salary Cost under GIA Order, 1994 and the employees who are in receipt of Block Grant under different GIA Orders starting from GIA Order, 2004 onwards are employees continuing in Aided Educational Institutions of the State.
7.1. Therefore, in view of such provisions contained under Section 3(b) of the Orissa Education Act, read with Section 7- C of the Act and the decisions of this Court in the case of Page 23 of 24 // 24 // Ritanjali Giri as well as Sarat Chandra Parida and Radharani Samal and of the Hon'ble Apex Court in the case of D.S. Nakara and Mamata Mohanty as cited (supra), it is the view of this Court that no discrimination can be made in between two sets of employees with regard to applicability of the 1974 Rules. While holding so, it is the view of this Court that the provisions of 1974 Rules as is applicable to the employees of aided educational institutions in receipt of grant-in-aid and under G.I.A Order 1994 is also squarely applicable to the employees working in different educational institutions and in receipt of Block Grant under GIA Order, 2004 onwards. Accordingly, the plea taken by the Opp. Parties that 1974 Rules is not applicable to the employees who are in receipt of Block Grant is not entertained and accordingly rejected. This Court directs Opp. Party No.1 to extend the benefit of 1974 Rules to the employees of aided educational institutions who are in receipt of block grant under GIA Order, 2004 onwards as has already been extended in favour of the employees of aided educational institution in receipt of Grant-in-Aid under G.I.A Order, 1994.
The issue is answered accordingly.
Put up all the matter on 31.10.2023 for further orders.
Signature Not Verified Digitally Signed Signed by: SANGITA PATRA (Biraja Prasanna Satapathy) Reason: authentication of order Judge Location: High Court of orissa, cuttack Date: 26-Oct-2023 12:50:24 sangita Page 24 of 24