The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22751 OF 2013 (An application under Articles 226 and 227 of the Constitution of India) Nityananda Samal … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.S.K.Gadanayak, Advocate -versus- For Opposite Parties : Mr.Biplab Mohanty, Addl.Standing Counsel (S & M.E. Deptt.) --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 21.2.2023. Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; Page 1 of 8 “Under the facts and circumstances stated above the petitioner therefore prays that, this Hon’ble Court may be graciously pleased to admit the writ petition, issue notice to the Opposite Parties and after hearing the parties to this writ application this Hon’ble Court may further be pleased to issue a writ in the nature of mandamus or any other appropriate writ by quashing the impugned order under Annexure-3 and direct the Opp.Parties to fix the petitioner scale of pay @ Rs.1080-1800/- from 1.5.1989 as per Govt.resolution and pass further consequential order to revise his in accordance with corresponding pay Orissa Revised Pay Scale Rule, 1998 which came into force from 1.1.96 for the ends of justice.” 2. The brief facts of the case are that the Petitioner was appointed as 3rd Teacher through a regular recruitment process in Krushnapur Sasan M.E. School in the district of Jajpur on 22nd July, 1971 with pay @ Rs.80/- per month. At the relevant time the staffing pattern of the M.E. School (For two Classes i.e., Class- 6 and 7) was as follows; 1.One Headmaster trained intermediate 2.Trained Matric-1, 3.Trained Matric-1 4.Peon-1. 3. By Notification of the Government in the erstwhile Education and Youth services dated 10th August, W.P.(C) No. 22751 of 2013 Page 2 of 8 1979, untrained persons with higher qualification were permitted to be appointed in a M.E. School against trained matric post. By a further notification of the Government, Department of Education and Youth Services on 25th August, 1982, a decision was taken to allow the trained matric scale of pay to untrained persons having higher qualification in Primary and M.E. Schools and also in High Schools against trained matric post. At the time of his appointment, the Petitioner was a simple matriculate but passed intermediate examination in the year 1982. As such, having regard to the Government decision referred above, the Petitioner was allowed the trained matric scale as per Notification dated 18th July, 1983. While the matter stood thus, the Orissa Revised Scales of Pay (ORSP) Rule, 1985 came into effect on 1st January, 1985 and the ORSP Rule, 1989 came into effect from 1st May, 1989. Accordingly, the Petitioner’s pay was fixed as untrained intermediate scale of pay of Rs.840-1240/-, which was at par with trained matriculate scale of pay as per OSRP W.P.(C) No. 22751 of 2013 Page 3 of 8 Rules,1985. As per the ORSP Rules, 1989 the scale of pay of untrained candidate/trained matriculate teacher is at the scale of Rs.1080-1800/- and matric teacher (untrained) is at the scale of Rs.950-1500/-. The Government vide Resolution dated 28th June, 1991 decided that the untrained intermediate teachers, who were drawing trained matric scale of pay as per the Government Resolution dated 31st March, 1982 will be fixed at the scale of Rs.975- 1660/-. Accordingly, by order dated 18th February, 2009 of the District Inspector of Schools, Jajpur-(II), Jajpur Road, the scale of pay of the Petitioner of Rs.1080-1800 w.e.f. 1st May, 1989 was cancelled and was re-fixed at Rs.1075/- in the scale of Rs.975-25- 1150-30-1660/- on 1st May, 1989. The said order is impugned in the present Writ Petition. 4. Counter affidavit has been filed by the Opposite Party No.3, inter alia, stating that the Petitioner does not possess trained qualification and therefore, as per the ORSP Rules, 1989 he is not entitled to the pay W.P.(C) No. 22751 of 2013 Page 4 of 8 meant for the trained teachers. It is further stated that two scales have been prescribed in ORSP Rules, 1989 i.e., one for trained matric teachers and another for other teachers. Since no scale of pay has been provided for untrained intermediate teachers, the Petitioner falls in this category. Further, after coming into force of the ORSP (Amendment) Rules, 1990 the Government decided that the untrained intermediate teachers shall be provided the Scale of Rs.975-1660/-. On such basis, it is stated that the Petitioner is not entitled to the higher pay scale, which is meant for trained teachers.
Legal Reasoning
5. Heard Mr. S.K.Gadanayak, learned counsel appearing for the Petitioner, and Mr. Biplab Mohanty, learned Addl. Standing Counsel for the School and Mass Education Department. 6. Mr. Gadanayak submits that the Petitioner was granted the trained matric scale by virtue of the decision taken by the Government way back in the year 1982. The ORSP Rules, 1989 which came into W.P.(C) No. 22751 of 2013 Page 5 of 8 effect from 1st May, 1989 cannot have any retrospective application to take away any benefit already granted to a teacher. Mr. Gadanayak further submits that even otherwise the order under Annexure-3 cannot be sustained in the eye of law having been passed without adhering to the principle of natural justice. 7. Per contra, Mr. Biplab Mohanty has contended that that ORSP Rules, 1989 are very clear to the effect that an untrained teacher cannot be granted the scale of pay meant for trained teachers. In view of the admitted position that the Petitioner, despite possessing an intermediate qualification is untrained, he cannot lay any valid claim on the scale of pay meant for trained teacher. 8. After considering the rival submissions and on going through the materials on record, this Court is of the considered view that the order under Annexure-3 cannot be sustained in law for the reasons indicated hereinafter. Firstly, the Petitioner, despite being untrained was granted the trained scale of pay as per W.P.(C) No. 22751 of 2013 Page 6 of 8 the decision of the Government of Odisha in the Department of Education and Youth Services in its letter dated 25th August, 1982. Secondly, the ORSP Rules, 1989 came into effect from 1st May, 1989. As such, the operation of the said Rules shall be prospective in nature. Even otherwise, there is no provision in the said Rules for interfering with any benefit already granted to an employee prior to commencement of the said Rules. Thirdly, it is the settled position of law that if any benefit granted to an employee is sought to be withdrawn, it is incumbent upon the authorities to grant him an opportunity of hearing. It is needless to mention that no opportunity of hearing whatsoever was granted to the Petitioner before issuance of the order under Annexure-3 even though the same was to his detriment.
Decision
9. For the foregoing reasons therefore, the Writ Petition is allowed. The impugned order under Annexure-3 is hereby quashed. The Opposite Parties are directed to fix the pay of the Petitioner in the scale of pay of W.P.(C) No. 22751 of 2013 Page 7 of 8 Rs.1080-1800/- w.e.f. 1st May, 1989. Necessary orders in this regard shall be passed within a period of four weeks. ………..…….……………. Judge Sashikanta Mishra, Ashok Kumar Behera W.P.(C) No. 22751 of 2013 Page 8 of 8 W.P.(C) No. 22751 of 2013 Page 9 of 8 W.P.(C) No. 22751 of 2013 Page 10 of 8