Orissa High Court
Kalidas Mohapatra, Rajkishore ... vs State Of Orissa And Ors. on 21 December, 2000
Equivalent citations: 2001(II)OLR508
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The petitioners in all the above writ applications have prayed for a direction to opposite parties to pay them salary in the scale of Rs. 2200-4000/- with effect from 1-1-1986 and for payment of the differential arrear amount in the revised scale of pay as claimed. Since common questions are involved in all the four writ applications, the same are taken up together and disposed of by this judgment.
2. The petitioner in O. J. C. 15062 of 1996 was appointed as Lecturer in English on 2-11-1979 and pursuant to the decision of the Utkal University to condone the deficiency in qualification of non-Government college teachers dated 20-8-1986, the State Government in the erstwhile Department of Education & Youth Services condoned the deficiency in qualification of teachers appointed on or prior to 31-3-1982 and accordingly the deficiency in qualification so far as the petitioner was concerned was condoned and by order dated 13-7-1988, the petitioner's appointment was approved with effect from 2-11-1984 in the scale of pay of Rs. 1350-2975/- and - he was admitted and covered under the direct payment scheme with effect from 2-11-1984.
3. The petitioner in O. J. C. No. 15063 of 1996 was appointed as a Lecturer in English on 2-1-1981 and pursuant to the decision of the Utkal University dated 20-8-1986 condoning the deficiency in the qualification of non-Government college teachers, the State Government in the erstwhile Department of Education & Youth Services condoned the deficiency in qualification of the teachers appointed on or prior to 31-3-1982 and accordingly the petitioner's appointment was approved with effect from 2-1-1981 by order dated 31-3-1990 in the pay scale of Rs. 1350-2975/- and he was admitted and covered under direct payment scheme with effect from 2-1-1986.
4. The petitioner in O. J. C. No. 243 of 1997 was appointed as a Lecturer in English on 1-8-1980 and pursuant to the decision of the Utkal University dated 20-8-1986 condoning the deficiency in qualification of non-government college teachers, the State Government in the erstwhile Department of Education & Youth Services condoned the deficiency in the qualification of teachers appointed on or prior to 31-3-1982 and accordingly the petitioner's appointed was approved with effect from 1-8-1980 in the pay scale of Rs. 1350-2975/- and he was admitted and covered under the direct payment scheme with effect from 1-8-1985.
5. In O. J. C. No. 254 of 1997 the petitioner was appointed as Lecturer in Economics on 17-8-1978 and pursuant to the decision of the Utkal University dated 20-8-1986 to condone the deficiency in qualification of teachers working in non-government colleges, the State Government in the erstwhile Department of Education & Youth Services condoned the deficiency in qualification of teachers appointed on or prior to 31-3-1982 and accordingly the petitioner's appointment was approved with effect from 1-6-1980 in the pay scale of Rs. 1350-2975/- and he was admitted and covered under the direct payment scheme with effect from 1-6-1985.
6. Shri P. Achaiya, learned counsel appearing for the petitioners in all the four cases, submitted that the petitioners had submitted a memorandum to the Secretary to Government, t Education & Youth Services Department for condonation of deficiency in qualification on the ground that insistence on 54 per cent marks in the Master's Degree Examination as the eligibility criteria for absorption of the Lecturers appointed in private colleges during 1979-80 and 1980-81 had been causing undue hardship especially to those in subjects like English. Economics, Commerce, etc. in which there was paucity of candidates with higher second class marks under the traitional system of Post-Graduate Examination and prayed for condonation of the deficiency in qualification. Government in the Department of Education & Youth Services took a decision on 27-11-1986 that the under qualified teachers appointed in non-government colleges by the concerned management before the college became aided may be eligible to receive grant-in-aid notwithstanding their under qualification, provided they were appointed on or prior to 31-3-1982, subject to the condition that the posts held by them otherwise qualify for release of grant-in-aid and they secured condonation of their under qualification from the University. In continuation of the said decision, another decision was taken on 20-8-1989 to the effect that under qualified teachers who were appointed during the period from 1-4-82 to 31-12-84 by the concerned management before the college became aided, may be eligible to receive grant-in-aid notwithstanding their under qualification, provided that under qualifications of such teachers have been condoned by the University of the State, subject to the condition that the term 'under qualified teacher shall mean a teacher appointed as such securing less than 54 per cent marks in aggregate at the Post-Graduate examination in the concerned discipline but not less than 48 per cent of marks in any case. The Senate of the Utkal University in its meeting held on 30-5-1984 resolved that those affiliated college teachers who were continuing and teaching in various affiliated colleges of Utkal University since 1978 up to date i. e. for more than 5 years and possessing minimum second class degree should be allowed to continue further without any apprehension of termination; and that deficiency in qualification i. e. securing less than 54 per cent marks at P. G. Examination be condoned by Utkal University for the purpose and they should be given 8 years time to obtain M. Phil Degree from any University. In modification of the aforesaid Resolution the Senate in its meeting dated 8-7-1986 passed another Resolution stating that in case of those college teachers appointed since 1977-78 till 1983-84 academic session in Government or non-Government colleges affiliated to Utkal University who secured 48 per cent or more but below 54 per cent marks in the P. G. Degree Examination, their under qualifications for eligibility as College Teachers be condoned permanently. It was also pointed out that the Resolution of the Senate in its meeting held on 30-5-1984 had been communicated to Government on 23-6-1984 to waive the condition of 8 years time to attain M. Phil, Degree or Ph. D. from any University. Shri Acharya on the basis of the aforesaid Resolutions of the Senate as well as the decision of the Government submitted that the petitioners under qualifications stand permanently condoned and their appointments no more can be called as irregular or illegal. He further submitted that the Government of Orissa in the Department of Education & Youth Services passed a Resolution published in the Extraordinary Gazette dated 3rd November, 1989 with regard to revision of pay scale of teachers in colleges and other measures for maintenance of standard in Higher Education. The said Resolution covers all categories of full time Teachers working in all affiliated Government Colleges and aided non-Government Colleges either covered or eligible to be covered under direct payment schemes till 1st April, 1989. Under the said Resolution the Lecturers who were in the pay scale of Rs. 1350-2975/- were allowed the pay scale of Rs. 2200-4000/-. According to Shri Acharya even though the petitioners are covered under para 3.1 of the aforesaid- Resolution they have , not been extended the revised scale of pay as decided in the said Resolution which came into effect from 1st January, 1986 and therefore, the petitioners have claimed the revised scale of pay of Rs. 2200-4000/- with effect from 1st January, 1986.
Shri Acharya further submitted that the petitioners' appointments having been approved much prior to 1st April, 1989, they are entitled to the revised scale of pay as per the Resolution of the Government under Annexure-7.
7. A counter has been filed by opposite parties 1 and 2 wherein it is stated that the scheme of revision of pay scale of University and College teachers formulated by the University Grants Commission was communicated to the State Government on 17-6-1987 for implementation with effect from 1-1-1986. In paragraph 5 of the of the above letter it was left to State Government to adopt and implement the scheme after taking local conditions, into consideration and also to decide in their discretion to, introduce scale of pay different from those mentioned in the scheme. In order to extend the revised U. G. C. scale of pay to bona fide teachers Government in Education & Youth Services Department vide Resolution dated 6-10-1989 decided on principle for implementation of the scheme of revision of pay scales effective from 1-1-1986 for college teachers on certain terms and conditions and in paragraph 3.1 same was made applicable to all categories of full time teachers working in all affiliated colleges and aided non-Government colleges cither covered or eligible to be covered under direct payment scheme till 1-4-1989. Pay Fixation Rules in respect of teachers working in Government colleges, i. e. Orissa Revised Scale of Pay (for College Teachers) Rules, 1989, was issued in Finance Department Notification No. 45775 dated 29-12-1989 and the said Rules are not applicable to teachers in non-Government colleges. As there was no instruction for pay fixation in respect of non-Government aided college, a set of instructions was issued vide Education & Youth Services Department Resolution dated. 6-11-1990 to regulate the revision of scales of pay of different categories of teachers serving in aided non-Government colleges. The claim of the petitioners who are teachers of non-Government colleges, has to be examined in the light of instructions issued in the Government Resolution dated 6-11-1990. In-paragraph 2 (2) of the said Resolution the applicability of U. G. C. scales of pay to certain cases and non-applicability of the same to some categories of teachers have been mentioned. As prescribed in paragraph 2 (2)(vii) to the teachers whose qualifications/norms are below the qualifications/norms prescribed by the U. G. C, even if such lack of prescribed qualification has been condoned by Government/University, the said Resolution shall not apply and in view of the same, the petitioners in all the cases having secured less than 54 per cent marks in P.G. Examination cannot claim the benefit, even though their deficiency in qualification has been condoned.
8. After hearing the learned counsel for petitioners and the learned Additional Government Advocate, the following questions require to be answered : The petitioners who admittedly did not secure 55 per cent marks at the P. G. level had been appointed as Lecturers. Their under qualifications having been condoned by the University and their appointments having been approved prior to 1-4-1989, whether they are entitled to the revised scales of pay as per Resolution of the Government dated 6-10-1989 (Annexure-7). As per the decision of the State Government in Annexure-6, i.e. a letter from Deputy Secretary to Government in the Department of Education and Youth Services written to the Director, Higher Education dated 27-11-1886, the under qualified teachers appointed in non-Government colleges by the concerned management before the college became aided may be made eligible to receive grant-in-aid notwithstanding their under qualification provided they were appointed on or prior to 31-3-1982 subject to the condition that the posts held by them otherwise qualify for release of grant-in-aid and such under qualification is condoned. All the petitioners were appointed prior to 31-3-1982 and their under qualifications were also condoned in view of the decision taken by the Utkal University in Annexures-5 and 6, Considering the aforesaid fact the appointment of the petitioners were approved from different dates prior to 1-4-1989 and they were brought under the direct payment scheme. The petitioners also satisfy the requirements for condonation of deficency in qualifications as the term 'under qualified teacher' means a teacher securing less than 54 per cent marks in aggregate at the P. G. Examination in the concerned discipline but not less than 48 per cent marks in any case. There is no dispute that all the petitioners have secured more than 48 per cent but less than 54 percent marks. Coming to the Resolution of the Government dated 6th October, 1989 with regard to revision of pay scale of teachers working in colleges it appears that a decision was taken to cover all categories of full time teachers working in all affiliated Government colleges and aided non-Government colleges either covered or eligible to be covered under direct payment scheme till. 1st April, 1989. There is no dispute that the petitioners were working as full time teachers and that the college in which they were working are aided non-Government colleges which had received aid prior to 1st April, 1989. The appointments of the petitioners having been approved prior to 1-4-1989 and they having been covered under the direct payment scheme prior to 1-4-1989 there is no reason as to why the said Resolution of the Government shall not be made applicable to the petitioners. Reliance is placed by the learned Additional Government Advocate on the Resolution of the State Government in the Department of Education & Youth Services dated 6th November, 1990. It is stated in the said Resolution that a decision was taken to regulate the revision of scales of pay of different categories of teachers serving in aided non-Government colleges of the State and the said instructions were not made applicable to teachers whose qualifications were below the qualification prescribed by U. G. C. even if such lack in prescribed qualification stands condoned by, the University. Relying on the said. Resolution, the learned Additional Government Advocate submits that even if the under qualification of the petitioners have been condoned, they shall not be entitled to the benefits of revised scale of pay as per the Resolution of the Government dated 6th November, 1990. The Resolution of the Government dated 6th October, 1989 only says that the revised pay scale of teachers in colleges shall be applicable to all categories of full time teachers working in aided non-Government colleges, provided such colleges are covered or eligible to be covered under direct payment scheme till 1st of April, 1989, The said Resolution does not say anything about condonation of deficiency in qualification in respect of teachers who had been appointed prior to 1-4-1989 and whose appointments were approved and brought within the fold of direct payment scheme prior to 1-4-1989.
9. This Court in the decision reported in 72(1991) C.L.T. 4. Sk. Harwi v. State of Orissa and Ors., held as follows :
"5. In this connection, our attention has been invited to the dictionary meaning of the, word 'condone', as given in Chambers Twentieth Century Dictionary, which has defined this word to mean to forgive, to pass over without blame, overlook, to excuse...'. We have also noted the meaning of this word as given in the Oxford English Dictionary which is 'to give up, remit, forgive, pardon'. In Websters Third New International Dictionary, the meaning of 'condone' given is "to pardon, forgive (an offence or fault)'.
6. From the meaning of the word 'condone' as given in these dictionaries, it appears that once deficiency is condoned, the same is forgiven and the deficiency attached gets washed away. This apart, in the present case the resolution of the Syndicate has stated that the deficiency has been condoned permanently. Because of these, we are of the view that Shri Kanungo's appointment as Lecturer was valid with effect from 8-8-1967."
In view of the aforesaid decision of this Court, the deficience in qualification having been condoned the same is forgiven and the deficiency attached gets washed away.
10. This court in the decision in O. J. C. No. 14967 of 1996, disposed of on 12-9-2000, relying on an earlier decition of this Court in O. J. C. No. 6101 of 1995, disposed of on 24-7-96, held that the deficiency in qualification having been condoned and the petitioner therein having been brought under the direct payment scheme prior to 1-4-1989 is entitled to get U. G. C. scale of pay. Therefore, instructions issued on 6th November, 1990 prescribing that the Resolution of the State Government dated 6th October, 1989 shall not be applicable to teachers whose qualifications have been condoned, cannot be acted upon.
11. I, therefore, allow the writ applications and direct the opposite parties to fix the pay of the petitioners in the scale of Rs. 2200-4000/- with effect from 1st January, 1986 and pay them the differential arrear amount within a reasonable period.
12. Writ applications allowed.