State of Odisha Smt. Bharati Das & others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.525 of 2020 State of Odisha Smt. Bharati Das & others ….. Vs. ….. Appellant Mr. M.K. Khuntia, AGA Respondents Mr. Bikram Pratap Das, Advocate for Respondent no.1 CORAM: THE CHIEF JUSTICE MR. JUSTICE MURAHARI SRI RAMAN ORDER 12.03.2024 Order No. 12. This matter is taken up through hybrid mode. 2. The State of Odisha has put to challenge, in the present intra-Court appeal, an order dated 03.01.2020 passed by a learned
Legal Reasoning
Single Judge of this Court in W.P.(C) No.3459 of 2010, whereby the writ petition filed under Articles 226 and 227 of the Constitution of India by the respondent no.1 came to be allowed. 3. The respondent no.1 had approached this Court seeking quashing of the decision of the State of Odisha dated 04.10.2008, whereby she was allowed regular pay scale with effect from 01.07.2008 as she claimed that she was entitled to regular scale with effect from 24.02.1994. She sought consequent directions also from the Court. Page 1 of 8 4. The respondent no.1 claimed that she was appointed as Special Educator with effect from 07.12.1984 by the Private Management of the “School for Mentally Retarded, Balasore” on consolidated salary of Rs.500/- per month. The School was subsequently recognized by the Government of Odisha and started receiving grant-in-aid from 1986-89. In December, 1985, the State Government formulated a set of Rules for the institutions imparting education to blind, deaf and mentally retarded children. The said scheme, however, did not have any provision for recruitment of teachers and determination of their pay scales. It was in that background that a resolution was issued on 28.12.1987 providing a scheme for engagement and salaries of such teachers. The said scheme remained unimplemented. Subsequently, vide resolution dated 24.02.1994 the State Government came out with separate scheme laying down the norms for fixation of yardsticks for teaching and non-teaching staff of such Schools. It is not in dispute that in accordance with the said resolution, a Special Educator was entitled to scale of pay of Rs.1400-2600/-. As the said scale was not allowed to the respondent no.1, she had
Decision
approached this Court by filing the writ petition giving rise to OJC Page 2 of 8 No.2310 of 1996 with a prayer to allow her the prescribed scale of pay with effect from 01.04.1994 in accordance with the said resolution dated 24.02.1994. The writ petitions filed by the respondent no.1 and other two teachers of the same School were disposed of on 18.08.1999 asking the State Government to consider the proposal of the Management of the said School for fixing pay scale. The Management of the School, it appears from the impugned order, had already sent the proposal to the State Government. 5. It also transpires from the impugned order, which is not in dispute that after the order was passed on 18.08.1999, the Management of the School was directed to re-submit the proposal with the proceedings and recommendations of the Selection Committee. It further transpires that there were certain communications between the State Government and the Management in relation to pay scale. Finally, the Management sent the proceedings of the Selection Committee on 21.01.2004, whereafter a communication was sent to the Management intimating approval of regular pay scale in respect of the respondent no.1 with effect from 01.07.2008 and grant-in-aid in Page 3 of 8 the approved pay scale was released in favour of the respondent no.1 on 28.02.2009. The respondent no.1 represented before the authorities against the decision to release grant-in-aid by treating the respondent no.1’s regular pay scale with effect from “01.07.2008” instead of “24.02.1994”. Later, the respondent no.1 approached this Court by filing W.P.(C) No.3459 of 2010 as no decision was taken by the State Government on her representation claiming benefit of regular pay scale with effect from 24.02.1994. 6. In order to cut the matter short, we deem it proper to refer to the pleadings in paragraphs 2 & 3 of the counter affidavit, which was filed in the writ Court, which reads as under:- “2. That the deponent humbly submitted that, the petitioner was appointed as Teacher on 01.12.1984 and is rendering his service from 7.12.1984. As the resolution dated 24.02.1994 clearly stipulates that no assistance shall be made available in respect of the post created or staff appointed by the organization unless it is obtained prior approval of the Govt. Accordingly, the selection committee on 21.01.2004 recommended the name of the petitioner for regularization with effect from 24.02.1994. The recommendation was considered by the Govt. and allowed for regular scale of pay with effect from 01.07.2008. 3. That the deponent further humbly submitted that no record is available in the office of the deponent, as to why the Govt. accorded approval for the post of the petitioner with effect from 01.07.2008. In the meantime, a new Department was created for Social Security and the matter pertaining to the present dispute is coming the administrative control of newly created Department of Social Security and Empowerment of Persons with Disability. As such the record as already transferred to the said Department.” Page 4 of 8 7. Referring to the facts admitted in the counter affidavit by the appellant/State Government, the learned Single Judge has recorded that there was no reason disclosed for denying the benefit of scale of pay with effect from 24.02.1994 and there was no reason nor rationale behind fixation of 01.07.2008 as the date with effect from which the respondent no.1 should be entitled to regular pay scale. 8. Mr. M.K. Khuntia, learned Additional Government Advocate representing the State has drawn this Court’s attention to the relevant portion of the resolution dated 24.02.1994 with definite reference to page 6 thereof which reads as under and has been quoted in Ground No.B of the grounds taken in the present writ appeal:- “(i) A person already engaged in recognized institution having passed the minimum qualification required for the post will be allowed salary as per norms. (ii) The list of the staff members and their scale of pay have been approved by the Government. (iii) Requirement of qualified staff has been made against the post already approved by the Government. (iv) No assistance shall be made available in respect of post created or staff appointed by the organization unless it has obtained prior approval of Government. (v) Recruitment of staff has been done by selection committee comprising of the District Social welfare officer of the district, Inspector of Schools and Secretary of the organization observing all formalities and duly approved by the Director, SW Government of Odisha.” Page 5 of 8 9. He has submitted that it has evident from the pleadings on record that the Management had not sent the requisite proposal before 21.01.2004. He contends that in no case the State Government could have extended the benefit of grant-in-aid without receipt of the proposal from the Management. He submits, referring to communication dated 30.01.2004 made by the Management of the School, that the meeting of the Selection Committee of the School was held in 2000 and subsequently on 21.01.2004. In such view of the matter, the appellants were right in their decision to grant regular pay scale after receipt of the proposal. He has also argued that the respondent no.1 was dismissed from service by the Management and she was reinstated in service in 2008. He, accordingly, submits that it was conscious decision based in the background of this fact that the regular pay scale in case of the respondent no.1 was allowed with effect from “01.07.2008” instead of “24.02.1994”, the same being the date of the resolution of the State Government. 10. We have carefully perused the materials on record and have considered the submissions advanced on behalf of the parties. We Page 6 of 8 find justification in the impugned order passed by the learned Single Judge, wherein it has been held that the State failed to explain the rationale behind allowing the respondent no.1 regular scale with effect from 01.07.2008. An argument has been advanced on behalf of the State that if not “01.07.2008”, the respondent no.1 cannot claim benefit of regular pay scale from a date prior to the date of receipt of the proposal by the State Government from the Management of the School, that was the requirement in the resolution of the State Government. We are, however, of the view that the State has not disputed the factual aspect that the respondent no.1 was appointed by the Management on 01.12.1984 and had been rendering her service since 07.12.1984. It is an admitted fact in the counter affidavit filed by the State of Odisha that no record was available in the Office to explain why the Government had accorded approval for the respondent no.1’s post with effect from “01.07.2008” instead of “24.02.1994”. Further, the order terminating the services of the respondent no.1 was admittedly set aside by this Court with all consequential benefits. 11. Such being the situation, in an intra-Court appeal, we do not Page 7 of 8 find any reason to interfere with the impugned order of the learned Single Judge dated 03.01.2020 which does not suffer from any legal infirmity. This appeal, in our opinion, has no merit and is, accordingly, dismissed. (Chakradhari Sharan Singh) Chief Justice MRS/Laxmikant (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 14-Mar-2024 13:15:03 Page 8 of 8