The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.3940 of 2019 ..... Dr. Antaryami Nayak Petitioner Dr. J.K. Lenka, Advocate State Of Odisha & Ors. -versus- ..... Opposite Parties Mr. S. Jena, AGA Mr. M.R. Sahoo, Advocate (Opp. Party No. 3) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 14.08.2024 Order No.07 1. This matter is taken up through hybrid mode. 2. Heard Dr. J.K. Lenka, learned counsel appearing for the
Legal Reasoning
Petitioner, Mr. S. Jena, learned Addl. Govt. Advocate appearing for the State and Mr. M.R. Sahoo appearing on behalf of Mr. U.C. Patnaik, learned counsel appearing for Opp. Party No. 3. 3. Petitioner has filed the present writ petition inter alia challenging office order dtd.22.07.2016 so issued by the Govt.-Opp. Party No. 1 under Annexure-9 and consequential communication issued by the College-Opp. Party No. 3 on 14.12.2016 under Annexure-12. 4. Learned counsel for the Petitioner contended that in terms of the advertisement issued by the State Selection Board, Petitioners’ name was duly recommended by the office of Opp. Party No. 2 for his appointment as against the post of Lecturer in Physics in S.V.M. College, Jagatsinghpur vide office order dtd.28.07.1997 under Annexure-3. Page 1 of 6. 4.1. It is contended that even though Petitioner was sponsored for his appointment in terms of the advertisement issued under Annexure-2 and in the said advertisement as against such appointment to the post in question, regular scale of pay was prescribed, but Opp. Party No. 3 while providing appointment to the Petitioner, appointed him with consolidated pay of Rs. 2000/- per months vide order dtd.23.08.1997 under Annexure-4. Petitioner joined in the said post on 26.08.1997. 4.2. It is contended that such appointment of the Petitioner as against the post of Lecturer in Physics in the College was duly approved by Opp. Party No. 2 vide office order dt.26.02.1998 under Annexure-5. It is accordingly contended that, since Petitioner was duly sponsored by the Selection Board for his appointment as against an approved post and the said post was also approved w.e.f.26.08.1997 vide order dtd.26.02.1998 under Annexure-5, Petitioner in view of the stipulation contained in the advertisement under Annexure-2 is eligible and entitled to get the benefit of regular scale of pay. But Opp. Party No. 3 illegally provided appointment with consolidated pay vide order dt.23.08.1997 under Annexure-4. 4.3. It is also contended that Petitioner was only allowed with the regular scale of pay vide order dtd.04.09.2002 of Opp. Party No. 2 under Annexure-7 w.e.f.15.02.2002. It is contended that since Petitioner was appointed in terms of the advertisement issued under Annexure-2, he should have been allowed with regular scale of pay from his date of joining i.e.26.08.1997, which was also duly approved by the Opp. Party No. 2 vide order dtd.26.02.1998 under Annexure-5. But Petitioner for the period from 27.08.1997 to Page 2 of 6. 14.02.2002 when was not extended with the benefit, Petitioner made various representations under Annexure-8 series. As the same was not considered, Petitioner approached this Court in W.P.(C) No. 9029 of 2015. This Court vide order dtd.13.05.2015 when directed Opp. Party No. 1 to take a decision on the claim of the Petitioner, the same was rejected vide the impugned order dtd.22.07.2016 under Annexure-9 with the following observation:- “In view of above premises, the prayer of the Petitioner to pay him the so-called outstanding arrear salary with interest @ 12% per annum by opposite party No. 1 is hereby rejected. However, it is clarified that O.P. No. 1 has no objection if the Private Management considers the claim of its employee from its own resources.” 4.4. Learned counsel for the Petitioner contended that in terms of the observation made by Opp. Party No. 1 in its order under Annexure-9 when the Petitioner raised the claim before the College, Opp. Party No. 3 vide the impugned letter dtd.14.12.2016 under Annexure-12 requested the Govt. to exempt the college from payment of the arrear dues of the Petitioner on the ground of paucity of fund. 4.5. It is contended that since Petitioner was duly sponsored basing on the advertisement issued under Annexure-2 and in the said advertisement regular scale of pay was prescribed, Petitioner from the date of his joining with due approval of his services w.e.f.26.08.1997, became eligible and entitled to get the benefit of regular scale of pay. But the said scale of pay was only allowed in favour of the Petitioner w.e.f.15.02.2002 vide order dtd.04.09.2002 under Annexure-7. Page 3 of 6. 4.6. It is accordingly contended that taking into account the nature of appointment provided to the Petitioner in terms of Annexure-2, rejection of the Petitioner’s claim to get the benefit of regular scale of pay for the period from 27.08.1997 to 14.02.2002 vide the impugned order under Annexure-9 and further order passed on 14.12.2016 under Annexure-12 are not sustainable in the eye of law. 5. Even though notice of the writ petition has been issued since 05.08.2019, but no counter affidavit has been filed either by the State or by the Opp. Party No. 3. However, learned Addl. Govt. Advocate and learned counsel appearing for Opp. Party No. 3 contended that Petitioner was appointed vide order dt.23.08.1997 under Annexure-4 on being sponsored by the Selection Board pursuant to the selection process undertaken in that regard vide Advertisement issued under Annexure-2. It is also contended that in terms of the order of appointment issued on 23.0.1997, Petitioner joined on 26.08.1997 and the said joining was duly approved vide order dt.26.02.1998 under Annexure-5. It is further contended that Petitioner was appointed against an approved sanctioned post of the College in questioin and the College by then was already declared as an aided education institution. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that after facing the selection process in terms of the advertisement issued under Annexure-2, Petitioner was duly sponsored for his appointment as against the post of Lecturer in Physics in S.V.M. College, Jagatsinghpur vide office order dtd.28.07.1997 under Annexure-3. This Court finds that in the advertisement issued under Annexure-2 Page 4 of 6. for such appointment to the post in question, regular scale of pay was prescribed for the post in question i.e.2000/- - 3500/- with usual D.A. as admissible. But as found from Annexure-4, Petitioner while being provided with the appointment by Opp. Party No. 3 vide order dt.23.08.1997 under Annexure-4, he was allowed consolidated pay of Rs. 2000/- per month. It is also found that appointment of the Petitioner in terms of order dtd.23.08.1997 was approved by the Director-Opp. Party No. 2 vide order dtd.26.02.1998 under Annexure-5 w.e.f.26.08.1997. This Court further finds that Petitioner was only allowed with the regular scale of pay w.e.f.15.02.2002 vide order dtd.04.09.2002 under Annexure- 7. 6.1. Since Petitioner was duly sponsored for his appointment as against an approved sanctioned post of Lecturer in Physics in terms of the advertisement issued under Annexure-2, Petitioner should have been appointed by the Opp. Party No. 3 by allowing such regular scale of pay as prescribed. Even though Petitioner was appointed with consolidated scale of pay vide office order dtd.23.08.1997, but services of the Petitioner was approved by the Opp. Party No. 2 w.e.f.26.08.1997 vide order dtd.26.02.1998 under Annexure-5. Considering the nature of advertisement issued under Annexure-2 and the order issued under Annexure-3 & 5, this Court is of the view that Petitioner is eligible and entitled to get the benefit of regular scale of pay from the date of his joining, which was duly approved w.e.f.26.08.1997, vide order dtd.26.02.1998 under Annexure-5. 6.2. Therefore, in view of the aforesaid analysis, this Court is inclined to quash the rejection of the Petitioner’s claim so issued by Page 5 of 6. the Govt.-Opp. Party No. 1 vide order dtd.22.07.2016 under Annexure-9 and further communication issued in that regard on 14.1.2016 under Annexure-12. While quashing the same, this Court directs Opp. Party No. 2 to release the differential entitlement of the Petitioner by allowing regular scale of pay in his favour for the period from 27.08.1997 to 14.02.2002. The entire exercise be undertaken and completed within a period of three (3) months from the date of receipt of this order. 7. The writ petition is disposed of with the aforesaid observation and direction. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa,Cuttack Date: 20-Aug-2024 17:41:37 Page 6 of 6.