Suvendu Mohanty vs State of Orissa and Others

Biswanath Rath, J.

Filing the writ application the petitioner sought for a direction from this Court to the O.Ps. to fix the salary of the petitioner in terms of pay revision

made by the State Government from time to time and further following the norms fixed by the U.G.C. as well as the U.G.C. Pay Revision made in the

year 1986 with further direction to fix the pay of the petitioner in the Senior Lecturers Scale and further directing the O.Ps. to pay the petitioner his

salary regularly in terms of Rule 9 of the Recruitment Rules, 1974 and also to release all arrears accrues to him within a stipulated period of time.

Factual background in the case is that Mahima Mahavidyalaya, Mahimagadi, Joranda is a recognized Aided Education Institution within the meaning

of Section 3(b) of the Orissa Education Act. The petitioner was appointed as a Lecturer in English by O.P.3 by virtue of appointment order dated

24.7.1978. Both the O.P.3 and the petitioner are governed by the provisions of the Orissa Education Act. It appears, while the petitioner was so

continuing with the O.P.3, his services were terminated by the orders of the Governing Body bearing order no.20 dated 23.3.1980 on the plea that the

petitioner was not having required mark of 54% as required to maintain such post. The petitioner claimed that the advertisement, pursuant to which the

petitioner was appointed, published in the daily “The Samaj†dated 11.7.78 seeking applications from the intending candidates securing 48% of

marks for the post advertised therein including the post of Lecturer in English, in which the petitioner has been appointed. Being aggrieved by the

order of termination passed by the Governing Body, O.P.3, the petitioner preferred O.J.C. No.756/1980 in this Court. Considering the stand taken by

the petitioner that since the advertisement required a candidate must have secured minimum 48% of marks in the particular subject, petitioner having

secured 48% of marks in the particular subject, the order of termination involving the petitioner was held bad and thus this Court in disposal of the writ

application indicated herein above by judgment dated 12.5.1989 appearing at Annexure-1, while allowing the writ application declared the order of

termination of service, vide Annexure-3 bad, accordingly setting aside the same directed that the petitioner shall be deemed to be continuing in service

throughout and entitled to pay and other benefits less any amount that might have been received by him as pay from any other source during the

period he was out of job along with further assessment of hearing fee at Rs.250/-. The petitioner’s further case is that the petitioner even though

was reinstated but was not given reinstatement and in the meantime, the O.Ps. moved Misc. Case No.5283/1989 for modification/review of the

judgment referred to herein, which Misc. Case being rejected by the order of this Court dated 15.1.1990, a telegram, vide Annexure-4 was issued to

the petitioner by the Management Committee asking the petitioner to join the post. It is consequent upon receipt of such telegram, the petitioner

submitted his joining report, vide Annexure-5 and the petitioner was continuing as such since 1st September, 1993. Vide Annexure-7, it appears, the

Principal, O.P.3 wrote a letter to the Additional Director of Higher Education intimating therein that since one Girija Sankar Das was holding the post

of Lecturer in English, the petitioner may be adjusted in any other direct payment post in any other college. In the meantime, the petitioner was

allowed to join the post of Lecturer in English in O.P.3’s college and vide, Annexure-10, the petitioner was asked to submit detailed particulars for

the period from 24.3.80 to 1.2.93, the period of disengagement and also information regarding pay and other benefits received by him from any other

source during the period from 24.3.80 to 31.8.93 in the process of computing the arrears involving the petitioner to comply with the direction of this

Court in the disposed of case. In the meantime, consequent upon submission of details of the petitioner, it appears, the Principal of O.P.3, vide

Annexure-11 submitted all detailed particulars involving the petitioner to the Deputy Director (N.G.C.-I) Orissa on 4.4.94 for their information and

necessary action. Consequent upon failure in the attempt of O.P.3 in this Court for modification of the judgment in the disposed of writ application

involving the petitioner, Service Book of the petitioner was also re-opened. The Service Book of the petitioner indicated that the petitioner was entitled

to pay Rs.525/- in the scale of Rs.525-30-555-40-670-EB-45-850-EB50-1300/-. The petitioner’s scale of pay was further fixed in the cap of

Rs.1350-2975/- and in the pay of Rs.1405/- with effect from 1st January, 1985 and with effect from 1st May, 1989 his pay was fixed at Rs.2000/-

whereas the petitioner was entitled to pay of Rs.2525/- with effect from 1st January, 1997. Taking help of the resolution of the Government issued in

the meantime revising the scale of pay of the lecturers involving the decision of the State Government extending the University Grant Commission Pay

Scale to college teachers with effect from 1st January, 1974 and the revised pay scale denotified under the O.R.S.P. (For College Teachers) Rules,

1978 the petitioner taking aid of Clause 3.1 therein claimed that the revised scale and other measures shall be applicable to all categories of full-time

teachers working in the affiliated Government Colleges and Aided Non-Government Colleges with cover or eligible to be covered under the Direct

Payment Schemes till 1st of April, 1989. The petitioner since covered under this resolution thus claimed that being working in the post of Lecturer his

scale of pay should be revised since he was fitted with scale of pay at Rs.700/- per month. The petitioner is entitled to revised scale of pay of

Rs.2200-75-2800-100-4000.

Sri J.K.Rath, learned senior counsel for the petitioner in justifying the claim of the petitioner on reiteration of the facts narrated herein above and

taking cue from the resolution of the Government of Orissa dated 6th October, 1989 as well as the provision contained in Rule-9 of the 1974 Rules

submitted that the petitioner for meeting the educational qualification requirement in terms of the advertisement involved in his recruitment is at the

minimum entitled to the benefits granted under the resolution of the State Government in the Education and Youth Service Department dated 6th

October, 1989 and non-payment of the revised scale of pay fitted against the post of Lecturer therein is illegal. Taking this Court to the maintenance

of service records involving the petitioner, the information available at Page-58 involving the service records, Sri Rath, learned senior counsel for the

petitioner submitted that the petitioner’s pay having been re-fixed at Rs.700/- with scale of pay band at Rs.700-40-1110-50-1300-ASS-50-1600

with effect from 7th August, 1978, as clearly appearing at page58 of the brief, for the prescription of the existing scale of pay vis-Ã -vis revised scale

of pay appearing at page-73 of the brief, Sri Rath, learned senior counsel for the petitioner justified the petitioner’s claim at the minimum at

Rs.2200-75-2800-1004000 with effect from 1st January, 1986. Sri Rath further submitted that following the further revision of the scale for the

introduction of subsequent revision of pay scale of teachers in the colleges in the meantime and the promotion given to the petitioner in the meantime,

the petitioner is also entitled to the subsequent revision in the scale of pay involving the lecturers. It is under the circumstance, Sri Rath submitted that

the petitioner has a justified case and this Court in consideration of the above should allow the writ application with specific direction for grant of relief

as prayed for within a stipulated period of time. Sri Rath taking this Court to the pleadings available in the Misc. Case No.5283/89 being moved by

O.P.3 to prevent the petitioner from his such claims on account of his not having the minimum 54% of marks to hold such post and this Court in

disposal of the Misc. Case having rejected such plea of the Managing Committee, Sri Rath, learned senior counsel for the petitioner hence submitted

that the O.Ps. are estopped from disentitling the petitioner from the claim made herein on the premises of the petitioner for not having minimum

qualified marks of 54%.

To the contrary to Sri A.K.Mishra, learned Additional Government Advocate for the State taking reliance on the submission made in the counter

affidavit by O.Ps.1 & 2 submitted that allowing the writ application bearing O.J.C. No.756/1980 and rejection of Misc. Case No.5283/1989 did not

make the petitioner automatically entitled to the revised scale of pay for the clear restriction by the U.G.C. not to appoint any lecturer without having

minimum 54% of marks for the Post Graduation. Further following the ruling of the Hon’ble apex Court in the case of State of Orissa & another

vrs. Mamata Mohanty reported in 2011 (3) SCC 436, Sri A.K.Mishra, learned Additional Government Advocate justified the action of the

Management in not providing the petitioner the revised scale of pay and /or the U.G.C. Scale of Pay. From the whole submission of Sri Mishra,

learned Additional Government Advocate, it appears the State has a strong reliance on the decision of the Hon’ble apex Court involving 2011 (3)

SCC 436 in defending their case.

In spite of service of notice on O.P.4 and a set of Counsel already appearing for O.P.4, nobody is found to be present during course of hearing.

There is no appearance on behalf of O.P.3 even. In the circumstance, this Court is constrained to decide this matter taking into consideration the

submission made by Sri J.K.Rath, learned counsel for the petitioner and Sri A.K.Mishra, learned Additional Government Advocate appearing for

O.Ps.1 & 2. It is made here clear that there is even no counter affidavit filed by either O.P.3 OR O.P.4.

Considering the rival contentions of the parties, this Court finds, in the first round of litigation the petitioner challenged the order of termination

suffered by him at the instance of O.Ps.3 & 4 preferring a writ petition in this Court involving O.J.C. No.756/1980. The writ petition was disposed of

vide Annexure-1 by the judgment of this Court dated 12.5.1989 and the Hon’ble High Court while allowing the writ application ultimately was

pleased to give the observations as follows :-

 “5. Considering the fact that the under-qualified teachers were directed to continue in the post from time to time and ultimately their such lack of

qualification was permanently condoned by the University and that some teachers who had been likewise retrenched as that of the petitioner were

subsequently reinstated in service, there does not appear to be any plausible reason as to why the petitioner should not be entitled to the same benefit

and restored to service. It is of course true that in the decision of the Government in letter dated 27.11.86 the conditions for continuance in the job as

stipulated by Government were that the concerned teachers must have been appointed prior to 31.3.82 and prior to the college becoming an aided one

that the concurrence of the University Grant commission is obtained to the permanent condition of the under-qualification and that the teachers

concerned also apply to the other two Universities for getting similar condonation of their under-qualification since they are liable to be transferred

from the jurisdiction of one University to another in the common cadre. So far as the first condition is concerned, it does not apply to the petitioner he

having been appointed prior to 31.3.82 and prior to the college becoming sided being admitted to Grantin-Aid from 1.6.84 as appears from the counter

affidavit filed on behalf of the O.P.1 on 24.2.89. As regards the two other conditions, no information is forthcoming as to whether the University Grant

Commission has concurred to the permanent condonation of the underqualifications and whether the two other Universities have also similarly

condoned the under-qualifications. But these conditions would be uniformly applicable to all underqualified teachers and if the services of all such

teachers are terminated on account of either lack of UGC concurrence or lack of condonation by the other Universities, the petitioner would be

likewise visited with such consequences, but however, his reinstatement in service cannot be refused if others similarly placed have been made to

continue in their jobs.

While coming to such conclusion, it is seen that O.P.3 has continued in the post since 27.4.80 and that because of the long years spent in between

the termination of his service may cause serious dislocation so far as he is concerned. Thus while directing reinstatement of the petitioner in service I

would further direct that O.P.2 should sanction a supernumerary post for the period if necessary for O.P.3 and also absorb him in a suitable post

forthwith. I hope that the State Government will also take suitable measures in that regard on the move of O.P.2.

In the result, the writ petition is allowed. The order of termination of service of the petitioner vide Annexure-3 is set aside. The petitioner shall be

deemed to be continuing in service throughout and entitled to pay and other benefits less any amount that might have been received by him as pay

from any other source during the period he was out of the job. Hearing fee is assessed at Rs.250/-.â€​

It also appears that being dissatisfied with the direction in the above writ application, the Managing Committee, O.P.3 moved a Miscellaneous

Application bearing Misc. Case No.5283/89 for modification of the judgment dated 12.5.89 involving O.J.C. No.756/1980. In moving the Misc. Case

the Managing Committee took the specific plea of the petitioner not having the minimum qualification of 54% of marks to hold the post of Lecturer

and their difficulty in appointing the petitioner in the first post for their decision involving appointment of a new Lecturer in the first post of English in

the meantime. It is considering the above submission of the Managing Committee as clearly appearing in paragraphs-3 and 10, this Court was pleased

to reject the Misc. Case observing as follows :-

 “This application is one for modification of this Court’s judgment declaring the O.P.1 to be deemed to have continued in service throughout

and entitled to be paid other benefits less any amount that might have been received by him as pay from any other source during the period he was out

of the job. The present application is to the effect that the judgment be modified to direct the O.P.1 to get his under qualification condoned by the two

other Universities and to obtain concurrence by the U.G.C. to such condonation. This question was specifically discussed in the judgment in

paragraph5 saying that such conditions would be uniformly applicable to all under-qualified teachers and would not constitute a bar to only his

continuance in service until a decision regarding that is taken by the respective authorities. In effect, the present application is a move to review the

judgment without having made any application for review. We do not think that after the judgment has been delivered, this Court has any authority to

make any modification as desired and we also do not think that any such modification is called for. The Misc. Case is accordingly disposed of.â€​

From bare reading of the aforesaid judgment as well as the order involving the writ application as well as the Misc. Case, there remains no doubt

that the requirement in the advertisement for a candidate having minimum 48% of marks for being considered against the post advertised therein and

that the petitioner was consciously appointed for having secured 48% of marks for the post of Lecturer since 1978. This Court finds, for no challenge

to the aforesaid judgment in higher forum, the question as to whether the petitioner is entitled to be retained in service in spite of his scoring less than

the minimum 54% of marks remains closed. There can be no further adjudication on this issue for the finality of the writ application involving O.J.C.

No.756/1980.

Considering the correspondence dated 5.8.89 issued by the Government of Orissa in the Department of Education and Youth Services appearing at

Annexure-20 available at page86 of the brief, this correspondence deals with the continuance of the under-qualified teachers in non-Government

Colleges (eligibility to receive grant-in-aid from Government). This Court finds, this is a circular/communication being issued on 5.8.89 not only deals

with the under-qualified teachers appointed after 31.3.82 but for the details indicated therein, it also appears that the communication is a prospective

one and as such, has no application to the cases that of the petitioner, who was appointed in the year 1978.

Now coming to the claim of the petitioner and the fitment, on his scoring less than 54% he was qualified to be considered as the advertisement

prescribed minimum qualification requirement at 48%, this Court from the entire reading of the brief nowhere finds any denial to the requirement of a

candidate for the post of Lecturer having minimum 48% of marks has not been denied by any of the O.Ps. Further coming to consider the claim of

fitment of scale of the petitioner, this Court from page-48 of the brief finds, the petitioner’s scale was later on fixed at Rs.700/- and in the scale of

pay band of Rs.700-40-1110-50-1300-ASS-50-1600, as clearly borne from the contents in the Service Book available at page-58 of the brief. This fact

has also not been denied by any of the O.Ps. This Court thus is of the firm opinion that the petitioner’s scale was not only fixed at Rs.700/- with

effect from 7th August, 1978 but the petitioner was also appointed not only in terms of the declaration made in the advertisement involved appointment

of the petitioner but the appointment was also made fully knowing that there was no requirement of securing minimum 54% of marks in Post-

Graduation by a candidate. Taking into account the resolution of the Government of Orissa in the Department of Education and Youth Services issued

on 6th October, 1989 from Clause-3.1, this Court finds, the particular Clause reads as follows :-

 “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-Government Colleges with covered or eligible to be covered under

direct payment schemes till the 1st April, 1989. The scheme will also be extended to full time eligible teachers working in the College of Accountancy

and Management Studies, Cuttack.†Clause-3.1 makes effect the revised scale indicated therein with effect from 1st January, 1986. Clause-3.3

discloses the existing scale of pay as well as revised scale of pay. Reading of the indication of the existing scale as well as revised scale of pay

indicated in Clause-3.3 of the Government Resolution dated 6th October, 1989, this Court also finds, the petitioner, who was appointed as a Lecture

with subsequent application of scale at Rs.700/- is certainly entitled to the revision scale of pay at Rs.2200-75-2800-100-4000/-.

Now coming to consider the provision contained at Rule-9(1) of the Orissa Education (Recruitment and Conditions of Service of Teachers and

Members of the Staff of Aided Educational Institutions) Rules, 1974. This Court finds, Rule-9(1) therein reads as follows :-

 “9.Drawal of pay and allowances by employees of Aided Institutions-(1) Every employee of an Aided Educational Institution shall draw the

same pay, dearness allowance and subsistence allowance in case of suspension as is admissible to counterpart in the Government educational

institutions under the relevant rules applicable to him and shall ordinarily be paid in the month following the month to which the claim relates directly by

Government or by any Officer or by any Agency authorised by Government.†Reading of the aforesaid Rule, it also becomes clear that every

employee of an Aided Educational Institution shall draw the same pay, as is admissible to the counterparts in the Government Educational Institution

under the relevant Rules. Following the Ruling made by this Court in Banamali Behera vrs. State of Orissa & Others reported in 1997(1) OLR 555,

this Court finds, the O.Ps. are legally prohibited from taking the plea otherwise and are bound to extend the same benefit to the petitioner, as has been

made in respect of a Lecturer working in Government Educational Institution. This Court also observes that the Rules since having a statutory force,

no party is entitled to avoid the provision involving the rule.

It is at this stage, now coming to consider the stand of Sri A.K.Mishra, learned Additional Government Advocate taking reliance of a decision of

the Hon’ble apex Court in Mamata Mohanty (supra), reading the whole judgment, this Court finds, the issue involved therein involves a claim for

grant of U.G.C. Scale of Pay and that too involving a case of backdoor engagement. In the decision relied upon by the learned Additional Government

Advocate in paragraph-36, Hon’ble apex Court took a view that no person can be appointed even on temporary or ad hoc basis without inviting

application from the eligible candidates. Further from the entire reading of the judgment and as concluded in paragraph-69, it appears, there involves a

claim for U.G.C. Scale of Pay. Therefore, the decision of the Hon’ble apex Court, vide (2011) 3 SCC 436 referred to herein above is not

applicable to the case at hand.

For the detailed narrations herein above, there is no dispute involving the case that the petitioner was appointed not only prescribing a required

qualification of 48% of marks at the minimum but the petitioner was also recruited in a duly constituted selection process. Considering the

petitioner’s entry in service, the mode of selection even though the petitioner is not entitled to the U.G.C. Scale of Pay for his not having the

minimum required qualification but accepting that the petitioner’s appointment was confirmed by this Court, vide O.J.C. No.756/1980 and there

being no challenge to the said judgment in higher forum thereafter further for the benefit involving Annexure-18 and the applicability of the said

Resolution to all existing cases of the Lecturers, this Court holds, the petitioner cannot be deprived of the benefit of the revised scale of pay as

prescribed under Annexure-18 at the minimum. This Court, therefore, holds, the petitioner is entitled to the revised scale of pay of Rs.2200-75-2800-

100-4000/- with effect from 1st January, 1986 following the provision contained in Clauses-3.1, 3.2 and 3.3 of the Resolution dated 6th October, 1989.

Taking into consideration the submissions of Sri J.K.Rath, learned senior counsel for the petitioner that the petitioner has been promoted in the

meantime, this Court also observes, in the event the petitioner is in fact promoted in the meantime or subsequent revision of scale of pay involving the

Post of Lecturer as well as the subsequent Post held by the petitioner will also be made applicable to the petitioner. The entitlement of the petitioner

be calculated within a period of one month and after deducting the entitlement of the petitioner in the existing scale of pay in the meantime, the arrear

outstanding along with interest @ 6% per annum be released in favour of the petitioner taking into account the stages of revision, the date of

entitlement, the period of entitlement and the arrears thereon from time to time. The writ application succeeds. No cost.