Jayanta Kumar Panda vs State of Orissa and Others

P. K. Mohanty, J.—The petitioner is aggrieved by the inaction the opp. parties in not fixing his pay in the UGC scale at Rs. 2,200- 4.000/- and instead allowing him to continue in the scale of Rs. 2,000 - 3,500/-fixed by the Government.

The brief fact of the petitioner''s case without unnecessary details is that the petitioner pursuant to the order of appointment dated 8.9.1983 under Annexure-2 joined as a lecturer in Sanskrit (3rd post) in Dinakrushna College, Jaleswar (opp. party No. 3). The 3rd post of lecturer in Sanskrit in opp. party No. 3 -College was a post approved by the Director. His appointment was terminated and he was relieved from the College by order dated 2.10.1986 by the Principal (Annexure-3) pursuant to the joining of a Selection Board candidate against the said third post held by the petitioner. However, according to the petitioner he still continued as a lecturer from 9.9.1983 being appointed by the management on 89 days''s basis from time to time. The petitioner has annexed the letter dated 22.11.1986 of the Principal appointing him provisionally as a lecturer from 24.11.1986 to 20.2.1987 purely on temporary basis terminable at any time without prior notice (Annexure-4). The said appointment was extended for successive periods of 80 days till the joining of the Selection Board candidate from the Government and subject to an undertaking that he will not serve under any other institution during the tenure of his service in the institution by letter dated 3.3.1987 (Annexure-5). In office order dated 19.8.1987, however, the petitioner was appointed for a period of 89 days from 1.9.1987 to 29.8.1987 on consolidated pay of Rs. 400/- per month subject to arrival of Selection Board candidate whichever is earlier on temporary basis.

The Deputy Director {NGC. II) intimated the Principal-cum-Secretary of the Governing Body of the Opp. party No. 3-College in letter dated 18.3.1989 (Annexure-7) to issue appointment order in favour of the petitioner, as retrenched ad hoc lecturer in Sanskrit of the College as lecturer in Sanskrit against 3rd post (M.P.) lecturer in Sanskrit lying vacant consequent upon adjustment Sri S. N. Kar, a Selection Board candidate against consequent post (direct payment) in the scale of Rs. 1,380/- with usual allowances for a period of six months on ad hoc basis. The Principal-cum-Secretary of the Governing Body vide Annexure-8. dated 21.3.1989 issued the appointment order accordingly in favour of the petitioner. The petitioner claims to have joined the institution on the said date, i.e. 21.3.1989.

The Director in office order dated 6.12.1989 (Annexure-9) adjusted the petitioner against the second post (direct payment) in B. B. College, Rairakhol in the scale of pay of Rs. 1,350 - 2,975/-and the appointment/ adjustment was approved from the date of joining by order dated 1.1.1990 (Annexure-10) with effect from 12.12.1989, i.e. the date of joining. When the matter stood thus, the petitioner''s appointment got validated under Rule 3(b)(e) of Orissa Aided Educational Institutions (Appointment of Teachers Validation) Act, 1989 read with the Orissa Aided Educational Institutions (Appointment of Teachers Validation) Amendment Act, 1989 with effect from 9.9.1983 (Annexure-11). The scale of pay of the petitioner was fixed at Rs. 2,000 - 3,500/- taking into consideration the pre-revised scale of pay of Rs. 1,350-2,975/- and the fact that the appointment was with effect from 12.12.1989, but according to the petitioner, since his appointment has been validated with effect from 9.9.1983 at Dinakrushna College in the scale of pay of Rs. 525-1,150/-he was entitled to get regular service benefit as given to the similarly situated lecturer and ought to have been fixed in the scale of pay or Rs. 2,200-4,000/-. The petitioner alleged that he made representation vide Annexures-12 and 13, but yielded no result. The opp. parties 1 and 2 have filed their return denying and refuting the claim made by the petitioner. According to the counter, the 3rd post of lecturer in Sanskrit under opp. party No. 3-College was created by the Government in G. O. No. 13547 EYS dated 15.1.1980, but the said post was converted to direct payment with effect from 30.9.1980 by a subsequent G.O. No. 420387 EYS dated 30.9.1980 only to accommodate the lecturer retrenched from Government Colleges. The adjustment was personal to the retrenched incumbent and they were eligible for direct payment scheme so long they continue in the College. According to the opp. parties this position was clarified by subsequent G.O. No. 11961/ EYS dated 30.3.1982, a copy of which is filed as Annexure- A/2. The petitioner was appointed by opp. party No. 3 as a lecturer in Sanskrit against 3rd post which is a management post on ad hoc basis without prior approval of the Director and joined on 9.9.1983. He was relieved from his duties on 2.10.1986 on joining of the duly appointed Selection Board candidate. With regard to the claim of the petitioner that he was continuing on ad hoc basis has been denied. The specific stand of the opp. parties 1 and 2 is that consequent upon the adjustment of State Selection Board candidate against 2nd post of lecturer in Sanskrit in Dinakrushna College, 3rd post was vacant and, therefore, opp. party No. 3 was requested by opp. party No. 2 to issue appointment order in favour of the petitioner against third post (Management post) as a fresh entrant for a period of six months on ad hoc basis, as would be evident from Annexure-7. The petitioner joined on 21.3.1989. He was adjusted in opp. party No. 4''s College against second post (direct payment post) in the scale of Rs. 1,300-2,975/- on ad hoc basis in terms of Annexure-9. in which the petitioner joined on 12.12.1989. The petitioner received full grant-in-aid with effect from 12.12.1989 in terms of Annexure-10 in opp. party No 4''s College. It is averred that the petitioner''s services were validated on regular basis with effect from the date of his initial joining i.e., 9.9.1983 under the Orissa Aided Educational Institution (Appointment of Teachers Validation) Act, 1989 (Annexure-11). Since he joined on ad hoc basis prior to 31.12.1983 and had completed one year of service to his credit by 31,12.1985. The petitioner was not getting the grant-in-aid component in the opp. party No. 3-College as he was holding the management post. With regard to the fixation of scale of pay it is stated that it has been fixed at the initial at Rs. 2,000/- according to the grant-in-aid principle. The scale of pay of lecturer from time to time being from 1.1.1974 Rs. 525 - 1,150/-, from 1.1.1981 Rs. 525-1,300/-, from 1.1.1985 Rs. 1,350 - 2,975/- and from 1.5.1989 Rs 2000-3,500/-.

The exact stand of the State and its authorities is that the petitioner was adjusted against a direct payment post only on 6.12.1989 in terms of order in Annexure-9, which the petitioner joined on 12.11.1989 and as such he is entitled to the scale of pay of Rs. 2,000-3,500/-and not Rs. 2,200- 4,000/-, as claimed. According to the State Government vide Resolution No. 44032 dated 6 .10.1989, on principle, adopted the revised scale of pay prescribed by the UGC. in respect of Government/Aided College Teachers with effect on 1.1.1986 under the Resolution, copy of which is Annexure-B/2. Subsequently, a set of instruction for fixation of pay in revised U.G.C. scale was issued in Resolution No. 48287/EYS dated 6.11.1990 for the teachers of Non-Government Aided Colleges, a copy of the Government Resolution is Annexure-C/2. The decision was made by taking the local condition as per Government of India letter No. F-1-21-8761 dated 17.6.1987, copy of which is Annexure-D/2, According to the State it is authorised to take a decision according to their discretion in terms of the aforesaid letter on consideration of the local factors. Under paragraph-2(1) of the resolution dated 6.11.1990 the instructions are to be applied to all categories of full time teachers working under the aided Non-Government Colleges either covered or eligible to cover direct payment scheme till 1st of April, 1989. The petitioner having come under the direct payment scheme and joined the post on 12.12.1989 in the College of opp. party No. 4, which is after 1.4.1989, he is not entitled to the revised scale of pay of Rs. 2,200-4,000/-. The validation does not ipso facto entitle UGC scale of pay. The ad hoc appointment of the petitioner was treated as regular under the Validation Act and no lecturer appointed or receiving grant-in-aid after 1.3.1989 have been allowed to the scale of pay of Rs. 2,200 - 4,000/-. However, it is stated that the date of eligibility of 3rd post of lecturer in Sanskrit held by the petitioner in the opp. party No. 3-College has not yet been determined since the opp. party No. 3 has not furnished the proposal to determine the eligibility of the post held by the petitioner. If the opp. party No. 3-College furnish the proposal in this regard the date of eligibility of the post to receive grant-in-aid will be determined as per the Grant-in-Order, 1994 and if any grant-in-aid falls due against the post of the petitioner, he would be paid in the scale of pay due and admissible.

In view of the pleadings of the parties, the question that falls for determination is as to whether the petitioner is entitled to the scale of pay of and Rs. 2,200-4,000/-, the appointment having been validated since 9.9.1983 in terms of the Validation Act or is to be determined in accordance with the resolution of the Government dated 6.10.1989, Annexure-B/2.

By resolution dated 6th October, 1989 (Annexure-B/2), the Government implemented revision of pay scale with the terms and conditions laid thereunder. Clause 3(1) of the resolution is with regard to the coverage which may be quoted hereunder :

"3.1 Coverage :

The revised scales and other measures for improvement of standards in Higher Education shall be applicable to all categories of full time teachers working in all affiliated Government Colleges and aided Non-Govt. Colleges either covered or eligible to be covered under direct payment scheme till 1.4.89. The scheme wilt also be extended to full time eligible teachers working in the College of Accountancy and Management Studies etc."

All categories of full time teachers of aided Non-Government Colleges either covered by the eligibility or to be covered under the Direct Payment Scheme till 1.4.1989 are eligible to the scale of Rs. 2,200-4,000/-. According to the State, the petitioner having for the first time been appointed in the post covered under the grant-in-aid on 12.12.1989, when he was transferred to and adjusted in Bhima Bhoi College, Rairakhol. opp. party No. 4 and earlier the petitioner was on ad hoc basis against the management post in the opp. party No. 3-College, the petitioner is not entitled to the said scale. Shri A. K. Misra, learned counsel for the petitioner, however, submitted that since the petitioner was holding the 3rd post of lecturer in opp. party No. 3-College which was being held by one S. N. Kar, a Selection Board candidate and was getting the scale of Rs. 1,350/- with usual allowances who was getting UGC scale of pay and consequent upon adjustment of Shri Kar against the second post, the petitioner was directed to be appointed against the vacancy of 3rd post, he was entitled to the same scale of pay. The Director, Higher Education in his letter dated 18.3.1989 (Annexure-7) directed the Principal-cum-Secretary of the Governing Body of Opp. Party No. 3-College to appoint the petitioner against the 3rd post (management post) of lecturer in Sanskrit which was lying vacant consequent upon adjustment of Sri Kar, a Selection Board candidate against 2nd post (direct payment) in the scale of pay of Rs. 1,350/- with usual D.A. and the petitioner was appointed by the Governing Body of the College in office order dated 21.3.1989 (Annexure-8) as lecturer in Sanskrit (3rd management post) as fresh entrant for a period of six months purely on temporary basis terminable without assigning any reason. Thus, the post in which the petitioner was appointed and he joined on 21.3.1989 pursuant to Annexure-8 was a management post according to the State Government as well as according to the College which issued the appointment order. It is also stand of the State Government that the petitioner was not getting any grant-in-aid in opp. party No. 3-College since he was holding a management post and he was for the first time appointed to and hold the post covered under the grant-in-aid on 12.12.1989 in opp. party No. 4-College. In this view of the matter, if the petitioner''s appointment as against a post covered under the grant-in-aid for the first time is taken as 12.12.1989, he will not be entitled to the revised scale in terms of the resolution dated 6.10.1989 in view of Clause 3.1 thereof in which the teachers working in Aided Government College and Aided Non-Government Colleges either covered or eligible under the direct payment scheme till 1.4.1989 will only be entitled and not teachers working in such Colleges after 1.4.1989. A reference also has to be made to the resolution of the Government dated 6.11.1990 whereunder it is clarified that the Aided Non-Government Colleges contemplated under the resolution dated 6.10.1989 would only mean Aided Colleges which have been given Government concurrence and University affiliation for opening of a +3 Degree course by 1.4,1989 and not thereafter inasmuch as the resolution is not applicable to persons engaged on contract except where contract provides otherwise, the persons, re-employed teachers who are appointed primarily in +2 institution or teachers appointed and teachers whose qualification is below the qualification norms prescribed by the University even if such lack of prescribed qualification has been condoned by the University or the Government teachers not drawing the same under regular scale of pay for whom no revised scale is prescribed etc. as contemplated under Clause 2.1.

In view of the resolution of the Government, it is clear that the category of teachers specified thereunder who are College teachers only will be entitled to the UGC scale of pay which obviously means that a teacher in a Degree College. A teacher appointed in a Degree College to which +2 stream is attached and appointed for the +2 Sections only, shall not be eligible to receive the UGC scale. It is, therefore, clear that the petitioner having held the post covered under the grant-in-aid on 12.12.1989, will not be eligible to receive UGC scale on the basis of such resolution.

However, the next question that arises for consideration is as to what would be the entitlement, the appointment of the petitioner having been validated from 8.9.1983 in terms of the Validation Act when he was holding the post on ad hoc and temporary basis in opp. party No. 3-College. The petitioner''s appointment was terminated on 2.10.1986 (Annexure-3) in view of the joining of a duly selected candidate from the State Selection Board. According to the specific stand of Opp. parties 1 and 2 in paragraph-10 of the counter affidavit the eligibility of 3rd post of lecturer in opp. party No. 3 College had not been determined, the opp. party No. 3 having not moved the Director furnishing the relevant papers.

In such view of the matter, it is clear that the eligibility and entitlement of the petitioner to the revised scale in terms of the Government resolution was dependant on the status of the 3rd approved post of lecturer in Sanskrit in Dinakrushna College (opp. party No. 3) as on 9.9.1983, when the petitioner was appointed to the post and till 22.9.1986 when his appointment was terminated, the Selection Board candidate having joined the institution. If the 3rd post of lecturer in Sanskrit which is admittedly an approved post in opp. party No. 3''s College is covered or eligible to be covered for grant-in-aid by 1.4.1989, obviously the petitioner if found to be holding the post in the Degree College shall be entitled to the UGC scale of pay in terms of the Government resolution dated 6.10.1989. In the case of Sunil Kumar Pattanaik v. State of Orissa and Ors.; OJC No. 17082 of 2001, disposed of on 18.1.2002 by a Division Bench of which one of us Sri P. K. Mohanty, J was a party, it has been held that the case of release of salary has to be considered in the light of the provisions contained in 7(C) of the Orissa Education Act and Grant-in-Aid Order, 1994 with the procedure prescribed thereunder. The decision was rendered placing reliance on the decision of the Apex Court in State of Orissa and Anr. v. Pratap Kumar Nayak and Anr. 93 (2002) CLT 79 (SC) that an employee whose services are validated under the Validation Act is not ipso facto entitle to the grant-in-aid unless and until his case is considered under the provisions of Grant-in-Aid Order read with Section 7(C) of the Orissa Education Act and the Grant-in-Aid Order.

In that view of the matter, the State Government is now to take a decision as to the eligibility of the 3rd post of lecturer in Sanskrit in opp. party No. 3-College, approved by it, by the time the petitioner was holding the said post, determine the eligibility of the petitioner to the scale and consequential benefit thereof. The entire exercise should be done within a period of three months from the date of communication of our order.

The writ application is thus disposed of with the aforesaid orders and observations.

L. Mohapatra, J.

I agree.