The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.152 of 2018 In the matter of an application under Article 226 of the Constitution of India. Management of Sanjay Memorial Institute of Technology ........ Appellant -Versus- State of Orissa and others ........ Respondents For the Appellant: Mr. L. Samantaray Advocate For the Opposite Parties: Mr. Partha Sarathi Nayak AGA (for Respondent Nos.1 & 2) Mr. B.K. Mohanty Advocate (for Respondent No. 3) CORAM: THE HONOURABLE SHRI JUSTICE S.K. SAHOO AND THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA --------------------------------------------------------------------------------------- Date of Hearing: 24.06.2025 Date of Judgment: 09.07.2025 --------------------------------------------------------------------------------------- Page 1 of 15 S.S. Mishra, J. The present Writ Appeal arises out of the judgment dated 14.03.2018 passed by the learned Single Judge in W.P.(C) No.9492 of 2010, whereby the writ petition filed by Respondent no.3, Subash Chandra Mishra, was allowed. The learned Single Judge has directed the appellant-institution to fix the pay of Respondent no.3 as per the AICTE Rules for the post of Instructor from the date of his appointment (1985-86) till his retirement, and to disburse the differential arrear salary and consequential pensionary benefits, if any, accrued on such re- fixation. 2. Heard Mr. L. Samantaray, learned counsel appearing for the appellant, Mr. Partha Sarathi Nayak, learned Additional Government Advocate for the State-Respondent nos.1 & 2 and
Legal Reasoning
Mr. Bijaya Kumar Mohanty, learned counsel for the Respondent no.3. 3. The appellant-Sanjay Memorial Institute of Technology (SMIT), is a technical institution established at Brundaban Vihar, Ankushpur, near Berhampur in the district of Ganjam, Odisha. The institution is recognized by the All India Council for Technical Education (AICTE) and is approved by the Government of Odisha. The Respondent no.3, Subash Chandra Mishra, was appointed as an Instructor (Welder) at SMIT on Page 2 of 15 14.10.1983 after completing his High School Certificate (HSC) examination and acquiring the ITI (Welding) trade qualification. 4. Upon his appointment, the Respondent no.3 was allowed to draw salary as per the terms outlined in his appointment letter, which specified a pay scale of Rs.300-8-308- 10-385-LB-12-442-14-470, along with usual Dearness Allowance (DA) and Additional Dearness Allowance (ADA) as admissible to State Government employees. The appointment was described as purely temporary and terminable with one month’s notice from either side. 5. It is the case of Respondent no.3 that while he was receiving the salary according to the appointment order until 1985-86, the Management did not allow him to draw the enhanced salary as per the Government of Odisha Regulations from time to time thereafter. He claimed that he was assured by the authorities that the differential salary would be paid at the time of his superannuation. However, his pay was not revised periodically and he continued to receive his monthly salary at the discretion of the Management. 6. Learned counsel for the appellant-SMIT, on the other hand, contended that as a private unaided institution, it is not Page 3 of 15 bound by the revised pay scales applicable to government employees. The Management asserted that salary payments are governed solely by the terms of the appointment letter and the decisions of the governing body, not by government regulations or AICTE guidelines. Furthermore, the institution maintains that the post of Instructor (Welder) in an ITI is governed by the rules and regulations of the National Council for Vocational Training (NCVT), not the AICTE, which applies to diploma and degree- level institutions and teaching facilities. 7. The Respondent no.3 retired from service on 24.06.2008 at the age of 58, on attaining age of superannuation. Upon retirement, he did not receive the enhanced salary or any consequential pensionary benefits. In 2010, two years after his retirement, he filed W.P.(C) No.9492 of 2010 before this Court, seeking the release of his differential salary and benefits as per AICTE and government regulations. 8.
Decision
In the Writ Petition, the Respondent no.3 put forth a case that since SMIT is a technical institution recognized by both the AICTE and the Government of Odisha, he was entitled to receive the salary sanctioned for his post under the relevant regulations. He provided a calculation sheet of the outstanding Page 4 of 15 dues and pointed out that he had been deprived of his legitimate entitlements. 9. The institution, in its counter-affidavit, reiterated its position that the appointment of the Respondent no.3 was contractual and that he was only entitled to the pay scale mentioned in his appointment letter. It also argued that the claim was time-barred, as the writ petition was filed two years after retirement and covered a period extending back to 1985- 86. Additionally, the institution emphasized that the AICTE was not a party to the proceedings, and an application to implead the AICTE had been dismissed by the Court. 10. The learned Single Judge in W.P.(C) No.9492 of 2010 by judgment dated 14.03.2018, allowed the Writ Petition. The Court held that the Respondent no.3 was entitled to the pay scale at par with government employees as per the Orissa Revised Scale of Pay Rules and also under the AICTE, given the institution’s affiliation. The learned Single Judge directed the appellant-SMIT to fix the pay of the Respondent no.3 in accordance with the AICTE Rules from the date of his appointment (1985-86) until retirement and to disburse the differential arrear salary and any pensionary benefits accrued from such re-fixation. Page 5 of 15 11. Aggrieved by the learned Single Judge’s order, the appellant-SMIT filed the present Writ Appeal, challenging the direction to pay the Respondent no.3 as per the AICTE scale and contesting the applicability of AICTE Rules to his post. The appellant also questioned the maintainability of the writ petition, the correctness of the learned Single Judge’s findings, and the time-barred nature of the Respondent no.3’s claim. 12. The Respondent nos.1 & 2, the State of Odisha and the Director, Technical Education & Training, in their counter affidavit, clarified that SMIT is a private unaided institution and that matters of staff appointment, salary payment, and service conditions are internal affairs of the institution, over which they have no control or responsibility. They asserted that they were not necessary parties to the dispute. 13. On the basis of the pleadings and contesting position taken by the writ petitioner and the opposite parties, the learned Single Judge culled out two issues i.e. (i) Whether the writ petition is maintainable against the Opposite Party nos.3 & 4 institution? (ii) Whether the petitioner is entitled to arrear salary under the Revised Scale of Pay as per the U.G.C. or A.I.C.T.E. Guidelines? Page 6 of 15 14. To answer the point no.(i), the learned Single Judge has relied upon the judgment of the Hon’ble Supreme Court in the case of Janet Jeyapaul -Vrs.- SRM University and others, reported in (2015) 16 Supreme Court Cases 530 and the judgment of the Division Bench of this Court in Jaminikanta Das & others -Vrs.- Governing Body of Sanjaya Memorial Institute of Technology & others, reported in 84 (1997) Cuttack Law Times 483. The learned Single Judge by analysing the settled position of law arrived at the conclusion that the appellant-institution is an instrumentality of “State” under Article 12 of the Constitution of India, hence, amenable to the writ jurisdiction. In paragraph-14 of the impugned judgment, the conclusion is drawn up, which reads as under:- “14. Not only this, but also the aforesaid decision of this Court was also followed in similar question in W.P.(C) No.3175 of 2006. Learned counsel for the opp. Parties 3 and 4 relied upon the decision of the learned Single Bench of this Court in W.P.(C) No.6990 of 2016 in the case of Prafulla Kumar Mishra vs. State of Orissa and others (supra), where the learned Single Judge observed that Sanjaya Memorial Institution of Technology is not the State within the meaning of Article 12 of the Constitution and as such the writ application is not maintainable. Page 7 of 15 In that case this Court has not referred to the decision of the Hon’ble Apex Court and the Division Bench of this Court have not been placed before this Court as the learned Single Judge of this court had not discussed the word “authority” as available in Article 226 of the Constitution. Hence, with due respect the decision of the learned Single Judge of this Court is distinguished and as such the same is not applicable to the fact and circumstances of the case.” We have heard both parties at length in regard to the maintainability of the writ petition. We are completely in agreement with the conclusion arrived at by the learned Single Judge that the appellant-institution is “State” under Article 12 of the Constitution of India, hence, inescapably amenable to writ jurisdiction. 15. In so far as the point no.(ii) is concerned, the learned Single Judge has heavily relied upon the appointment letter of the Respondent no.3, which reads as under:- “18. The appointment letter vide Annexure-1 which is also admitted by the Opp. Parties 3 and 4 is placed below for reference:- Page 8 of 15 “Office of the Sanjaya Memorial Institute of Technology, At/P.O. Ankuspur, Via- Kukudakhandi, Dist-Ganjam. No._____________/83. Dated 14.10.83 Office Order Sri Subha Chandra Mishra, Misra Engineering, Berhampur is appointed as welder Instructor and remain in-charge of fabrication in the scale of Rs.300-8-308-10-358-LB-12-442-14-470/- per month with usual D.A. and A.D.A. as admissible to the Govt. servants of Orissa. The appointment is temporary and terminable with one month’s notice from either side in liew thereof. He should join his appointment forthwith. He should come with his welding Transformer with him which will be returned after we procure our own transformer. Sd/- B. Nayak 30.9.83 President” The recitation in the appointment letter that the Respondent no.3 is entitled to usual D.A. and A.D.A. as admissible to the government servant of Orissa assumes importance. The learned Single Judge has also relied upon the service book maintained by the institution in regard to the Page 9 of 15 Respondent no.3 and arrived at a finding that the institution has maintained the service book as that of a government servant. The service book as maintained and the appointment letter clearly lead to the only reference that the scale of pay as admissible to the government servant was intended to be available to the Respondent no.3. The learned Single Judge by taking into consideration the entire materials on record while answering the issue no.2 has arrived at the following conclusion:- “21. The copy of the Service Book also shows that the petitioner has been given annual increments time to time and the service has been verified from time to time as per procedure applicable in Government service. Besides this, the petitioner has been allowed revised scale of pay with effect from 1.1.2006 and also it appears that on attaining the age of superannuation was relieved from duties on 31.7.2008. When the Service Book is maintained showing revision of scale and on the date of superannuation he was allowed to retire, the contention of the learned counsel for Opp. Parties 3 and 4 that the petitioner was paid consolidated pay and the job was temporary one, is untenable. xxx xxx xxx xxx Page 10 of 15 23. In view of the aforesaid analysis, this Court is of the view that the petitioner is not only entitled to the scale of pay at per with the Government employees as per the Orissa Revised Scale of Pay Rules framed from time to time but also entitled to receive the same under the A.I.C.T.E. as the institute of Opp. Parties 3 and 4 is affiliated to A.I.C.T.E. Point No.II is answered accordingly.” Accordingly, the learned Single Judge went on to give the following relief to the Respondent no.3, which reads thus:- “25. It has been observed that the scale of pay at par with the Government servant of the petitioner has been revised, but the revised scale of pay under the A.I.C.T.E. has not been released. At the same time in the counter affidavit the Opp. Parties 3 and 4 have taken the stand that the petitioner is not entitled to any amount that the contractual amount mentioned in the appointment letter. In fact from Annexure-2, it appears that the petitioner has been paid some salary at the discretion of SMIT, but neither according to the Orissa Revised Scale of Pay Rules nor the A.I.C.T.E. Rules. So, it is axiomatic to observe that the petitioner is entitled to the scale of pay of an Instructor as payable in the institution affiliated to A.I.C.T.E. Page 11 of 15 as claimed by the petitioner. So, this Court direct the Opp. Parties 3 and 4 to fix up the pay in accordance with A.I.C.T.E. Rules for the post of Instructor from the date of his appointment i.e. 1985-86 till his retirement and make disbursement of the differential arrear salary. It is needless to say that after re-fixation of salary, pensionary benefits, if any, accrued on re- fixation be re-fixed on the last pay drawn and differential arrear amount be released to the petitioner by Opp. Parties 3 and 4. The entire exercise be completed by Opp. Parties 3 and 4 within a period of four months from today.” 16. We do not see any perversity or illegality in the conclusion drawn by the learned Single Judge. Taking into consideration the conclusion and appreciation drawn by the learned Single Judge, in view of the limited scope of the jurisdiction in so far as Writ Appeal is concerned, we prefer not to interfere with the judgment dated 14.03.2018 passed by the learned Single Judge in W.P.(C) No.9492 of 2018. However, it is relevant to take into consideration the law laid down by the Hon’ble Supreme Court in Union of India -Vrs.- Tarsem Singh reported in (2008) 8 Supreme Court Cases 648 establishing the principle that while a continuing wrong may exist in the context of service matters (such as pay fixation), the Page 12 of 15 claim for arrears of salary is subject to limitation. The Court held that monetary claims should ordinarily be restricted to a period of three years preceding the date of filing the writ petition, except in cases where the employee has been continuously pursuing the claim through representations or legal proceedings without undue delay. Relevant part of the said judgment reads as under:- “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or Page 13 of 15 pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” The Bombay High Court, in a recent Division Bench decision in the case of Shishuvihar Shaishanik Sanstha Chalisgaon & Anr. -Vrs.- The State of Maharashtra & Ors., reported in 2024 LiveLaw (Bom) 566, reiterated that even if the right to proper salary is a continuing one, the arrears claim is limited to three years preceding the petition. The Court specifically applied the Tarsem Singh (supra) principle and restricted the claim for salary arrears to this period. Applying the above principle, the petitioner, having retired in 2008 and filed the writ petition in 2010, would be entitled to claim arrears of salary under the UGC or AICTE Guidelines only for the three years preceding the date of filing the writ petition. It is apparent Page 14 of 15 on record that the petitioner had not been continuously agitating the claim through timely representations or legal action, the relief for arrears of salary cannot extend to the entire period from the date of appointment or even from the date of entitlement under the revised pay scales. 17. In light of the aforementioned observation, the judgment of the learned Single Judge dated 14.03.2018 is modified to the extent that the Respondent no. 3 is only entitled to the arrears of salary confined to the period of 3 years. 18. Accordingly, the Writ Appeal is disposed of. (S.S. Mishra) Judge S.K. Sahoo, J. I agree. (S.K. Sahoo) Judge The High Court of Orissa, Cuttack Dated the 09th July 2025/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-Jul-2025 19:42:35 Page 15 of 15