Application under Articles 226 & 227 of Constitution of India. Somnath Ram .… v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 2571 of 2014 Application under Articles 226 & 227 of Constitution of India. Somnath Ram .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. B.S. Das, Advocate For Opp. Parties : Mr. S.N. Pattnaik Addl. Government Advocate
Legal Reasoning
Mr. Surendranath Dash, Advocate for (for O.P. Nos.2 to 4) _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 19th July, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court with the following prayer: “Under the facts and circumstances, it is humbly prayed that this Hon’ble Court may graciously be pleased to issue notice under Rule NISI calling upon the Page 1 of 9 Opp.parties to show cause as to why the impugned order dtd.23.02.2013, under Annexure-6 shall not be quashed and why the petitioner shall not be allowed the scale of pay @ Rs.1700/- -Rs.3200/- w.e.f. his date of joining. And if the Opp.parties fail to show cause or show insufficient/false cause, to make the said Rule absolute and issue a writ in the nature of mandamus directing the Opp.parties to allow the petitioner the scale of pay as per advertisement published on 23.12.1997 and disburse the arrear salary within a stipulated period; And may further be pleased to pass such other order/orders as may be deemed fit and proper. And for this act of kindness, the petitioner shall as in duty bound ever pray.” 2. The brief facts of the case are that an advertisement was issued by Odisha School Education Programme Authority (OSEPA). At that the petitioner was working as a Primary Teacher Elementary Cadre being appointed on Rehabilitation Assistance Scheme in Keonjhar District since 28.07.1988. He applied pursuant to the advertisement for being appointed as BRCC. Being selected, he was favoured with an order of appointment issued on 16.04.1998 clearly stating that the appointment is on Foreign Service terms and conditions by his parent department. The grievance of the petitioner is that the advertisement mentioned the scale of pay of BRCC at Rs.1700-3200/- but despite such Page 2 of 9 stipulation he was paid the salary of his previous job. He approached this Court in a writ application being W.P.(C) No.5898 of 2003. By order dated 17.05.2010, a Division Bench of this Court, finding that a representation dated 06.01.2003 was pending before the Director, Elementary Education, disposed of the writ application directing the Director to take a decision on the representation within a period of three months. The matter remained pending with
Decision
the Director and was ultimately disposed of by order dated 23.02.2013 in rejecting the claim of the petitioner, copy of which is enclosed as Annexure-6 and is impugned in the writ application. 3. Counter affidavit has been filed by the District Project Coordinator, SSA, Keonjhar on behalf of opposite party nos. 2 to 4. It is stated that the petitioner was working as BRCC in DPEP, Keonjhar from 16.04.1998 to 30.06.2003 till closure of the Scheme. His appointment was by way of deputation from the parent department on Foreign Service terms and conditions. The petitioner being a Primary Page 3 of 9 School Teacher was allowed to join on his own scale of pay. He also accepted the same without any demur or protest 4. The petitioner has filed a rejoinder stating that in the letter dated 16.03.1998 issued by the Special Officer, OSEPA to the District Inspector of Schools it was clearly mentioned that a view shall be taken later with regard to higher scale of pay. 5. Heard Mr. B.S. Das, learned counsel for the petitioner; Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State; and Mr. S.N. Das, learned counsel appearing for the opposite party Nos. 2 to 4. 6. Mr. B.S. Das would argue that having specifically mentioned a particular pay scale in the advertisement the authorities are estopped to pay a different scale to the petitioner. Moreover, the petitioner despite joining had been submitting representations to the authorities to grant him the advertised scale of pay but the same were not considered. He therefore, approached this Court in the Page 4 of 9 earlier writ application, wherein the Director was directed to take a final decision in the matter. Mr. Das further submits that the post in question being advertised with a particular scale of pay it is not open to the authorities to grant a different scale of pay. As regards the so called acceptance by the petitioner of the terms of appointment in the year 1998, Mr. Das would argue that the petitioner having repeatedly submitted representations and also approached this Court within a reasonable time, no estoppel would lie against him. 7. Mr. S.N. Pattnaik, learned AGA would submit that the question of grant of higher scale of pay is a policy decision to be taken by the appropriate authorities. In the instant case, the petitioner accepted his deputation from his parent department on Foreign Service terms and conditions. He therefore, cannot turn around to question the same at a belated stage. 8. Mr. S.N. Dash, learned counsel appearing for the OSEPA, while making similar arguments as the State Page 5 of 9 Counsel further submits that the scheme has been closed since 2003. The petitioner was deputed on Foreign Service Conditions. He never questioned the appointment. 9. After hearing the rival submissions and on going through the materials on record, this Court finds that undoubtedly, pay scale of Rs. 1700-3200/- was mentioned in the advertisement. A decision however appears to have been taken by the OSEPA that those applicants who have been selected as BRCC would be entitled to their own scale of Pay+DA+ADA which they are drawing in the parent department and further that decision regarding higher scale of pay would be taken later. Nothing has been placed on record to show as to whether any such decision was taken. Be that as it may, this Court also finds that the appointment letter dated 16.04.1998 issued in favour of the petitioner was on the following terms. Primary/UGME “No.____________/DPEPT(K) Sri Somanath Ram Tr. Dudugaon under Anandapur Education district who has duly been selected by the District Selection Committee in hereby appointed as BRC Co-ordinator in Saharpada block with his own scale of pay with School Page 6 of 9 usual D.A. and other allowances as admissible by Govt. from time to time pending sanction of foreign service terms and conditions by his parent department. The appointment is purely on temporary basis and returnable to his own post without any notice and assigning any reason there of.” 10. Further, the petitioner also appears to have been repatriated relieved upon closure of the DPEP w.e.f. 30.06.2003 also on the same terms and conditions. Thus, this Court finds that the petitioner not being a fresh appointee from the open market, was deputed from his parent post on Foreign Service terms and conditions. It is true that the advertisement does not stipulate anything about deputation but then it is also to be considered that the petitioner accepted the terms of appointment without raising any objection or protest at the relevant time. Five years down the line he approached this Court in the previous writ application which was disposed of by an innocuous order simply directing the Director to take a decision on the representation submitted by the petitioner. As such, there was no adjudication and the issue was left open for adjudication. Perusal of the impugned order Page 7 of 9 reveals that the petitioner’s claim for higher scale of pay was rejected on the ground that he had accepted the temporary deployment as BRCC in his own scale of pay and that he was never permanently appointed as BRCC. As such, his original scale of pay as admissible to him being an Elementary Cadre Teacher was maintained. This Court finds nothing wrong in such decision because the deputation was evidently a purely temporary affair intended for a limited period and not on permanent basis. 11. Under such circumstances, it was only proper that he was continued on his own scale of pay as otherwise it would have led to complications after his reversion to his parent post had he been granted the higher scale of pay in the temporary deputation. Moreover, the petitioner does not appear to have questioned the terms of such appointment at the relevant time and did so five years after the issuance of the same and at a time when the scheme was already closed. Page 8 of 9 12. Thus from a conspectus of discussion made hereinbefore this Court finds no merit in the contentions advanced by the petitioner. The writ application is therefore, dismissed. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 19th July, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2024 21:35:08 Page 9 of 9