Applications under Articles 226 & 227 of Constitution of India. AFR Gangadhar Sahu .… v. State of Orissa and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 8173 of 2003 Applications under Articles 226 & 227 of Constitution of India. AFR Gangadhar Sahu .…… Petitioner --------------- - Versus - State of Orissa and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioners : Mr. Bimbisar Dash, S.K. Nayak & M.R. Nayak, Advocates. For Opp. Parties : Mr. S.N. Pattnaik Addl. Government Advocate M/s. P.K. Nayak, H.B. Dash, A.C.R. Das & K.K. Jena, Advocates (for O.P. No.3) _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th July, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court seeking the following relief. “It is therefore prayed on behalf of the petitioner Page 1 of 11 that:- A. B. C. D E. to draw The Writ Application may be allowed A writ in the nature of Certiorari may be issued quashing ANNEXURE-3. A writ in the nature of mandamus may be issued directing the Opp. Parties to allow the petitioner to be placed in selection grade w.e.f. 1992 & not from 1997 and to allow the petitioner the arrear differential amount within a period to be stipulated by this Hon’ble Court. A Writ in the nature of mandamus may be issued directing to the Opp. Parties to take into account the services rendered by the petitioner in the Gov’t College prior to his appointment in the year 1976 in an Aided Educational Institute. And such other Order/Orders, Writ/Writs, direction/ directions may be issued, so as to give complete relief to the petitioner And for this act of kindness, the petitioner, as in duty bound, shall ever pray.” 2. The petitioner’s case is that he was initially appointed as Lecturer in Zoology on 30.08.1972 in M.P.C. College, Baripada being appointed by the Management of the said College. He was transferred to Dhenkanal College, Dhenkanal where he joined on 17.08.1973. He served in such College till 13.12.1975. As his appointment was not concurred by the OPSC, the petitioner was relieved from Dhenkanal College on 13.12.1975 and was directed by the Director, Higher Education, Odisha to join in Rairangpur College, Rairangpur on regular basis. Accordingly, he joined Page 2 of 11 in the said College on 02.01.1976 and continued till 03.03.1983 when he was transferred to Karanjia College, Karanjia. While serving in Karanjia College, the petitioner
Legal Reasoning
received the first Career Advancement Scale, i.e. Lecturer Senior Scale of Pay w.e.f. 01.01.1986. He approached the authorities for grant of further Career Advancement Scale, i.e. Selection Grade time and again but no action was taken. One of such representations dated 01.11.2002 was rejected by the Directorate vide letter dated 27.05.2003 stating that he is entitled to the Career Advancement Scale w.e.f. 02.01.1997 subject to fulfilment of the requisite conditions as per Odisha Education (Amendment) Act, 1998. Feeling aggrieved, the petitioner has approached this Court in the present writ application with the prayer as quoted above. 3. Counter affidavit has been filed by the opposite party No.2, wherein it is stated that the petitioner initially joined as Lecturer in Zoology on 30.08.1972 on ad hoc basis in M.P.C. College, Baripada, which is a Government College. He continued in the said College till 30.12.1975, when he was retrenched due to non-recommendation by the OPSC. Page 3 of 11 He thereafter joined in Rairangpur College on 02.01.1976, which is an aided non-Government College. As such, his services have been reckoned from 02.01.1976. He was granted Senior Lecturer Scale w.e.f. 01.01.1986 in accordance with the Government Resolution dated 19.03.1990. It is further averred that as per the Odisha Education (Amendment) Act, 1998, the petitioner would be eligible for placement in the Reader Scale w.e.f. 02.01.1997 subject to fulfilment of requisite conditions to be considered by the screening committee. The Principal of the College was called upon to submit the proposal but no such proposal was received. On such basis, it is stated that the petitioner’s claim for grant of Selection Grade w.e.f. 01.01.1992 is not tenable. 4. The petitioner has filed a rejoinder stating that he was allowed Selection Grade Scale of Pay w.e.f. 02.01.1997. The legality of the amendment of Section 7(C) of the 1998 Act has been questioned by the petitioner in view of its retrospective application. Page 4 of 11 5.
Legal Reasoning
Heard Mr. B. Dash, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State and Mr. P.K. Nayak, learned counsel appearing for opposite party No.3. 6. Mr. Dash would argue that notwithstanding the amendment to Section 7(C) of the 1998 Act, this Court in the case relating to a similarly placed employee in Dr. Ashok Kumar Mahanty and Others vs. State of Odisha
Decision
(W.P.(C) No. 16151 of 2019, disposed of on 17.05.2024) has interpreted the amended provision and held that it does not permit discrimination by the Government between employees appointed by the Management and those appointed through the State Selection Board. Mr. Dash further argues that the petitioner‘s case is squarely covered by the ratio decided in Dr. Ashok Kumar Mahanty(supra). 7. Mr. S.N. Pattnaik, learned Addl. Government Advocate would argue that as long as the amended provision has not been struck down the same has to be given effect to. Moreover, such amended provision has stood the ground for more than two decades. Page 5 of 11 8. Mr. Nayak would argue that the College can have no specific stand in the matter as it is for the State Government to decide the entitlement of the petitioner as claimed. 9. There is no dispute that the petitioner had initially joined in a Government College w.e.f. 30.08.1972 and was also transferred to Dhenkanal College but his services were retrenched because of non-recommendation by the OPSC. After some time he joined in a non-Government aided College, i.e., Rairangpur College on 02.01.1976. Thus for all practical purposes, said date is the date from which his entitlement to Career Advancement Scale is to be reckoned. According to the petitioner, he would be entitled to Senior Scale after rendering eight years of service as per the Government Resolution dated 06.10.1989. Thus, he would be entitled to Senior Lecturer Scale w.e.f. 02.01.1984. Further, he would be entitled to the Selection Grade after eight years i.e., from 02.01.1992. What the authorities appear to have done is to grant him the benefit after completion of 8 years of service both as Lecturer and as Senior Lecturer but after deducting five years from the Page 6 of 11 initial date of joining, i.e. 02.01.1976. This is sought to be justified by the State by relying upon the amended provisions i.e. sub-Sections (4-a) and (4-b) of Section 7(C) of the 1998 Act. 10. A similar question came up for consideration before this Court in Dr. Ashok Kumar Mahanty (supra), wherein this Court held as follows: its retrospective operation 11. Reading of the impugned order would reveal that the Secretary has referred to the amended provision and from 01.01.1986 to hold that the petitioners’ claim of not deducting five years of initial service for the purpose of availing grant-in-aid as per UGC scale of pay under career advancement scheme is not sustainable. It to said therefore, becomes necessary provision. By Odisha Education (Amendment) Act, 1998, Section 7-C of the Odisha Education Act, 1969 was amended to insert the following two provisions, i.e., sub-section (4-a) and (4-b). to refer "(4-a) The grant-in-aid to be borne by the State Government on account of placement of a teacher in an aided educational institution receiving University Grants Commission scales of pay under the Career Advancement Scheme, shall be limited to the extent as may be admissible by computing the period of service rendered by him against an approved post with effect from the date of completion of five years of service against such approved post: Provided that nothing in this sub-section shall be construed as to effect the seniority or any other conditions of service of such a teacher. (4-b) Notwithstanding anything contained in any judgment, decree or order of any Court to the contrary, any instructions issued, actions taken or things done on or after the 1st day of January, 1986 in regard to matters provided in sub-section (4-a) Page 7 of 11 shall be deemed to have been validly issued, taken or done as if the said sub-section were in force at all material points of time.” the 12. A plain reading of the amended provision makes it clear that the same does not permit any kind of distinction between teachers of aided educational institutions. This is highly significant in view of the admitted fact that several teachers of non- government aided educational institutions appointed through the State Selection Board have been granted benefit from the date of their appointment without deducting five years of service. Such benefit was granted to these teaches ostensibly on the ground that they were in receipt of full grant-in-aid from the date of their joining and therefore, there is no occasion to deduct five years of service for the purpose of career advancement. The above reasoning is unacceptable for the reason that there can be no distinction between the teachers of aided educational institution as has been held by this Court in the case of Ajoy Kumar Das & others vs. State of Orissa & others1. teachers appointed 13. Furthermore, when the amended provision of sub-Section (4-a) itself does not make any distinction between to non-government educational institutions through different sources, it is obviously not open to the authorities to unilaterally do the same as it would run entirely contrary not only to the settled position of law but also the statute and therefore, unconscionable. If the interpretation made by the authorities is to be accepted it would result in creating a class within a class, which again is not permissible in the eye of law as it would amount to discrimination. the Government cannot make a differential treatment for one set of employees as against another set, who are equally placed. It would be apposite at this stage to refer to the law relating to discrimination. It has been held that equality is the basic feature of the Constitution. The contents of the Article 14 of the Constitution have been expanded conceptually so as to comprehend non-arbitrariness. Article-14 of the Constitution only permits classification on legally valid grounds where In other words, 1 W.P.(C) No.15481 of 2005 Page 8 of 11 two categories from different classes cannot be held to be similarly situated. Such is not the case here as discussed hereinbefore. It is also well settled that discrimination means an unjust, unfair action in favour of one against another. It involves an element of intentional and purposeful differentiation and further an element of unfavourable bias; an unfair the classification. judgments of the Supreme Court in the case of Kathi Raning Rawat v. State of Saurashtra2 and M/s. Video Electronics Pvt. Ltd., and another v. State of Punjab and another3. Reference may be had to 14. Thus, the settled position of law is, the State cannot selectively apply a particular law by making it enforceable against one set of employees and relaxing the provisions in respect of another set of employees as has been done in the present case. It goes without saying that the statutory provision, as it stands, ought to be applied to all persons situate equally without any discrimination as otherwise it would amount to an infringement of the fundamental right of equality enshrined under Article 14 of the Constitution of India. The argument of learned State Counsel that the amended provision has not been challenged as such therefore, holds no water in view of the above discussion. 15. It is stated at the bar that persons appointed through State Selection Board have been granted benefit without deducting five years of service from the initial date of appointment. The petitioner’s case appears to be squarely covered by the decision rendered in Dr. Ashok Kumar Mahanty (supra).