The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.30976 of 2020 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Baishnab Charan Prusty …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : Mr. A. Swain, Advocate For Opp. Parties : Mr. M.K. Balabantaray, AGA along with Mr. S. Jena, AGA (Opp. Party Nos. 1 & 2) Mr. P.K. Parhi, DSGI along with Mr. D. Gochhayat, CGC (Opp. Party No. 4) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 30.11.2023 and Date of Judgment: 15.12.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The present writ petition has been filed inter alia challenging the order dtd.24.09.2020 so passed by the Opp. Party No. 1 under // 2 // Annexure-15, wherein the claim of the Petitioner to get the benefit of UGC scale of pay w.e.f.01.09.1989 was rejected. 2. It is the case of the Petitioner that Petitioner with having the requisite qualification, was appointed as a Lecturer in Chemistry (1st Post) vide order dtd.24.08.1989 under Annexure-2. Petitioner was so appointed after facing due selection process in terms of the advertisement issued by the College on 06.07.1989 under Annexure-1. Pursuant to the order of appointment so issued on 24.08.1989, Petitioner joined as a Lecturer in Chemistry (1st Post) in Kishorenagar College, Kishorenagar on 01.09.1989. 2.1. It is contended that while continuing as such Petitioner acquired Ph.D. degree from Utkal University, notification of which was issued on 26.02.2005. After acquiring the Ph.D. degree Petitioner also completed 4 (four) Refresher Courses in Chemistry and Environmental Science conducted by the UGC. 2.2. It is also contended that the services of the Petitioner as against the post of Lecturer in Chemistry (1st Post) was approved vide order dtd.24.11.1998 of the Opp. Party No. 2 in terms of the Govt. order No. 46209/EYS dtd.10.10.1985. Vide the said order Petitioner became Page 2 of 28 // 3 // eligible to get the benefit of Grant-in-aid @ 1/3rd w.e.f.01.06.1995, 2/3rd w.e.f.01.06.1997 and full salary cost w.e.f.01.06.1999.
Legal Reasoning
pending, Petitioner approached this Court in W.P.(C) No. 16089 of 2020.
Arguments
2.3. It is contended that in terms of the resolution issued by the UGC on 17.06.1987 under Anenxure-6 and consequential letter issued by the UGC on 22.07.1988 under Annexure-7 as well as letter dtd.24.12.1998 under Annexure-7/1, though the Petitioner became eligible to get the benefit of UGC scale of pay w.e.f.01.09.1989, but Petitioner when was not extended with the said benefit, he approached the Opp. Party No. 1 along with other officials by making a detailed representation on 07.05.2020 under Anenxure-12. When the claim made by the Petitioner in his representation dtd.07.05.2020 was not considered and kept
Decision
This Court vide order dtd.07.08.2020 disposed of the writ petition with a direction on the Opp. Party No. 1 to look into the request of the Petitioner as made in his representation dtd.07.05.2020 under annexure- 12. 2.4. It is contended that without proper appreciation of the claim of the Petitioner and the guideline issued by the UGC on 17.06.1987 under Annexure-6 and subsequent letter issued on 22.07.1988 under Annexure- Page 3 of 28 // 4 // 7 as well as letter dtd.24.12.1998 under Annexure-7/1, the claim of the Petitioner to get the benefit of UGC scale of pay w.e.f.01.09.1989 was rejected only on the ground that since the Petitioner got the benefit of Grant-in-aid @ 1/3rd w.e.f.01.06.1995, which is much later than the cut off date i.e.01.04.1989, Petitioner is not eligible to get the benefit of UGC scale of pay. 3. Mr. A. Swain, learned counsel for the Petitioner vehemently contended that even though Petitioner was appointed as against the post of Lecturer in Chemistry (1st Post) vide order dtd.24.08.1989 under Annexure-2, where he joined on 01.09.1989, but in view of the guideline issued by the UGC on 17.06.1987 under Anenxure-6 and subsequent letter issued by UGC on 22.07.1988 and 24.12.1998 under Annexure-7 and 7/1, Petitioner is eligible and entitled to get the benefit of UGC scale of pay w.e.f.01.09.1989. It is contended that in view of the guideline issued by the UGC on 17.06.1987 under Anenxure-6 and subsequent letters issued under Annexure-7 & 7/1, State-Govt. cannot impose any restriction arbitrarily depriving the Petitioner to get the benefit of UGC scale of pay w.e.f.01.09.1989. Page 4 of 28 // 5 // 3.1. It is also contended that under Art. 257(1) of the Constitution of India the executive power of any State shall be exercised in such a manner, which is not to impede or prejudice the exercise of the executive power of the Union and the executive power of the Union shall extend to the giving of such direction to a State as may appear to the Government of India to be necessary for that purpose. It is further contended that in view of the provisions contained under Art. 257(1) and 246(1) of the Constitution of India, the State Govt. has no authority to act above the Central Act. It is accordingly contended that since the claim of the Petitioner to get the benefit of UGC scale of pay was rejected only on the ground that Petitioner came into the Grant-in-aid fold w.e.f.01.06.1995, which is much later than the cut-off date i.e.01.04.1989 so fixed by the Govt. in the Department of Higher Education in its resolution dtd.06.10.1989 and 06.11.1990, Petitioner is eligible and entitled to get the benefit of the UGC scale of pay with quashing of the impugned order dtd.24.09.2020 under Annexure-15. 3.2. In support of his aforesaid submission learned counsel for the Petitioner relied on the following decisions of the Hon’ble Apex Court: (i) (2016) 7 SCC-353 (Modern Dental College & Res.Cen. Vs. State of Madhya Pradesh & Ors. Page 5 of 28 // 6 // (ii) SLP(C) Nos.36023-32 of 2010 (P. Suseela & Ors. Vs. University Grants Commission & Ors.) (iii) (2007) 10 SCC 306 (Udai Singh Dagar & Ors. Vs. Union of India & Ors. (iv) (2006) 1 SCC 275 (State of Orissa & Ors. Vs Md. Illiyas) 3.3. Hon’ble Apex Court in the case of Modern Dental College in Para 93 to 97 has held as follows:- “93. To our mind, Entry 66 in List I is a specific entry having a very specific and limited scope. It deals with coordination and determination of standards in institution of higher education or research as well as scientific and technical institutions. The words “coordination and determination of standards” would mean laying down the said standards. Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc. In fact, such coordination and determination of standards, insofar as is achieved by medical parliamentary legislation in the form of the Indian Medical Council Act, 1956 and by creating the statutory body like Medical Council of India (for short “MCI”) therein. The functions that are assigned to MCI include within its sweep determination of standards in a medical institution as well as coordination of standards and that of educational institutions. When it comes to regulating “education” as such, which includes even medical education as well as universities (which are imparting higher education), that is prescribed in List III Entry 25, thereby giving concurrent powers to both Union as well as States. It is significant to note that earlier education, including universities, was the subject-matter of List II Entry 11 [ “11. “Education” concerned, education is Page 6 of 28 // 7 // to thus transferred including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III”] . Thus, power to this extent was given to the State Legislatures. However, this entry was omitted by the Constitution (Forty- second Amendment) Act, 1976 with effect from 3-7-1977 and at the same time List II Entry 25 was amended [ Unamended Entry 25 in List III read as: “Vocational and . Education, including technical training of labour”] the university education, was Concurrent List and in the process technical and medical education was also added. Thus, if the argument of the appellants is accepted, it may render Entry 25 completely otiose. When two entries relating to education, one in the Union List and the other in the Concurrent List, coexist, they have to be read harmoniously. Reading in this manner, to it would become manifest coordination and laying down of standards in the higher education or research and scientific and technical institutions, power rests with the Union/Parliament to the exclusion of the State Legislatures. However, other facets of education, including technical and medical education, as well as governance of universities is concerned, even State Legislatures are given power by virtue of Entry 25. The field covered by List III Entry 25 is wide enough and as circumscribed to the limited extent of it being subject to List I Entries 63, 64, 65 and 66. that when it comes 94. Most educational activities, including admissions, have two aspects: the first deals with the adoption and setting up the minimum standards of education. The objective in prescribing minimum standards is to provide a benchmark of the calibre and quality of education being imparted by various educational institutions in the entire country. Additionally, the coordination of the standards of education determined nationwide is ancillary to the very determination of standards. Realising the vast diversity of the nation wherein levels of education fluctuated from lack of even basic primary education, to institutions of high excellence, it was thought desirable to determine and prescribe basic minimum standards of education at various levels, particularly at the level of research institutions, higher education and technical education institutions. As such, while balancing the needs of States to impart education as per the needs and requirements of local and Page 7 of 28 // 8 // for the nation. Consequently, regional levels, it was essential to lay down a uniform the minimum standard Constitution-makers provided for List I Entry 66 with the objective of maintaining uniform standards of education in fields of research, higher education and technical education. 95. The second/other aspect of education is with regard to the implementation of the standards of education determined by Parliament, and the regulation of the complete activity of education. This activity necessarily entails the application of the standards determined by Parliament in all educational institutions in accordance with the local and regional needs. Thus, while List I Entry 66 dealt with determination and coordination of standards, on the other hand, the original List II Entry 11 granted the States the exclusive power to legislate with respect to all other aspects of education, except the determination of minimum standards and coordination which was in national interest. Subsequently, vide the Constitution (Forty-second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to education was removed and deleted, and the same was replaced by amending List III Entry 25 granting concurrent powers to both Parliament and State Legislature the power to legislate with respect to all other aspects of education, except that which was specifically covered by List I Entries 63 to 66. doubt, 96. No in earlier Vidyapeeth [Bharati in Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] it has been observed that the entire gamut of admission falls under List I Entry 66. The said judgment by a Bench of two Judges is, however, contrary to law laid larger Bench decisions. In Gujarat down University [Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703 : 1963 Supp (1) SCR 112] , a Bench of five Judges examined the scope of List II Entry 11 (which is now List III Entry 25) with reference to List I Entry 66. It was held that the power of the State to legislate in respect of education to the extent it is entrusted to Parliament, is deemed to be restricted. Coordination and determination of standards was in the purview of List I and power of the State was subject to power of the Union on the said subject. It was held that the two entries overlapped to Page 8 of 28 // 9 // some extent and to the extent of overlapping the power conferred by List I Entry 66 must prevail over power of the State. Validity of a State legislation depends upon whether it prejudicially affects “coordination or determination of standards”, even in absence of a Union legislation. In R. Chitralekha v. State of Mysore [R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 : (1964) 6 SCR 368] , the same issue was again considered. It was observed that if the impact of the State law is heavy or devastating as to wipe out or abridge the Central field, it may be struck down. In State of T.N. v. Adhiyaman Educational & Research Institute [State of T.N. v. Adhiyaman Educational & Research Institute, (1995) 4 SCC 104 : 1 SCEC 682] , it was observed that to the extent that State legislation is in conflict with the Central legislation under Entry 25, it would be void and inoperative. To the same effect is the view taken in Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] and State of Maharashtra v. Sant Dnyaneshwar Shastra Mahavidyalaya [State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1 : 5 SCEC 637] . Though the view taken in State of M.P. v. Nivedita Jain [State of M.P. v. Nivedita Jain, (1981) 4 SCC 296] and Ajay Kumar Singh v. State of Bihar [Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401] to the effect that admission standards covered by List I Entry 66 could apply in Preeti only Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] , it was not held that the entire gamut of admissions was covered by List I as wrongly assumed in Bharati Vidyapeeth [Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] . admissions was overruled Shikshan post Thus, admissions. 97. We do not find any ground for holding that Preeti Srivastava [Preeti Srivastava v. State of M.P., (1999) 7 SCC 120 : 1 SCEC 742] excludes the role of States altogether from in Bharati Vidyapeeth [Bharati Vidyapeeth v. State of Maharashtra, (2004) 11 SCC 755 : 2 SCEC 535] that entire gamut of admissions was covered by List I Entry 66 cannot be upheld and overruled to that extent. No doubt, List III Entry 25 is subject to List I Entry 66, it is not possible to exclude the entire gamut of admissions from List III Entry 25. However, observations Page 9 of 28 // 10 // exercise of any power under List III Entry 25 has to be subject to a Central law referable to Entry 25.” 3.4. Hon’ble Apex Court in Para 3 of the Judgment in the case of P. Suseela has held as follows:- for “3. The facts necessary to appreciate the controversy in these appeals are as follows: the University Grants Commission Act, 1956, was enacted by Parliament to make provision the coordination and determination of standards in universities being enacted under Schedule VII List I Entry 66 to the Constitution of India. By Section 4 of the Act, a University Grants Commission is established to carry out the functions entrusted to it by Section 12 of the Act. We are directly concerned in these appeals with two sections of this Act, namely, Sections 20 and 26: “20.Directions by the Central Government.—(1) In the discharge of its functions under this Act, the Commission shall be guided by such directions on questions of policy relating to national purposes as may be given to it by the Central Government. (2) If any dispute arises between the Central Government and the Commission as to whether a question is or is not a question of policy relating to national purposes, the decision of the Central Government shall be final. *** 26.Power to make regulations.—(1) The Commission may, by notification the Official Gazette, make regulations consistent with this Act and the rules made thereunder— in (a) regulating the meetings of the Commission and the procedure for conducting business thereat; (b) regulating the manner in which and the purposes for which persons may be associated with the Commission under Section 9; (c) specifying the terms and conditions of service of the employees appointed by the Commission; Page 10 of 28 // 11 // (d) specifying the institutions or class of institutions which may be recognised by the Commission under clause (f) of Section 2; (e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instructions; (f) defining the minimum standards of instruction for the grant of any degree by any university; (g) regulating the maintenance of standards and the co- ordination of work or facilities in universities; (h) regulating the establishment of institutions referred to in clause (ccc) of Section 12 and other matters relating to such institutions; (i) specifying the matters in respect of which fees may be charged and scales of fees in accordance with which fees may be charged by a college under sub-section (2) of Section 12-A; (j) specifying the manner in which an inquiry may be conducted under sub-section (4) of Section 12-A. (2) No regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) or clause (h) or clause (i) or clause (j) of sub-section (1) except with the previous approval of the Central Government. (3) The power to make regulations conferred by this section except clause (i) and clause (j) of sub-section (1) shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.” 3.5. Hon’ble Apex Court in Para 52, 53 & 54 of the Judgment in the case of Udai Singh Dagar has held as follows:- “52. If the legislative power of Parliament vis-à-vis the State Government in this behalf is considered, a fortiori the State will have the legislative competence to lay down the qualification therefor. Page 11 of 28 // 12 // 53. It is one thing to say that laying down such qualification or taking away the right of the practitioners to continue their practice is unconstitutional but it is another thing to say that the same cannot be given retrospective effect. 54. A statute does not operate retrospectively only because a person's right to continue in profession comes to an end. A person will have a right to enter into a profession and continue therewith provided he holds the requisite qualification. As and when a qualification is laid down by a law within the meaning of sub-clause (g) of Clause (1) of Article 19 of the Constitution of India, the same would come into effect. In other words, it would act prospectively and, thus, not retrospectively, inasmuch as the practice he had already enjoyed is not taken away.” 3.6. Hon’ble Apex Court in the Judgment in the case of Md. Illiyas has held as follows:- “12. When the allegation is of cheating or deceiving, whether the alleged act is willful or not depends upon the circumstances of the case concerned and there cannot be any straitjacket formula. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on an earlier decision of the Court held that prerequisite conditions were absent. Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates : (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually Page 12 of 28 // 13 // decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra [(1968) 2 SCR 154 : AIR 1968 SC 647] and Union of India v. Dhanwanti Devi [(1996) 6 SCC 44] .) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem [1901 AC 495 : 85 LT 289 : (1900-03) All ER Rep 1 (HL)] the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.” 4. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Party Nos. 1 & 2 on the other hand made his submission basing on the stand taking in the counter affidavit so filed by the State-Opp. Parties. It is contended that the claim of the Petitioner to get the benefit of UGC scale of pay w.e.f.01.09.1989 is to be considered in accordance with the resolution issued by the Govt. in the erstwhile Education & Youth Services Department on 06.10.1989 and 06.11.1990 vide Annexure-A/1 and B/1 respectively. It is contended that resolution dtd.06.10.1989 under Annexure-A/1 was issued by the Govt. deciding therein to extend revised UGC pay scale to the college teachers in order to improve the standards in Higher Education leading to degree stages Page 13 of 28 // 14 // and made it applicable to all categories of full time teachers working in all affiliated colleges either covered or eligible to be covered under direct payment scheme till 1st April 1989. The said stipulation so contained in resolution dtd.06.10.1989 was further clarified in the subsequent resolution issued on 06.11.1990 under Annexure-B/1. In the resolution dtd.06.11.1990 under Annexure-B/1, it was stipulated that all categories of full time teachers working in all Aided Non-Govt. Colleges either covered or eligible to be covered under Direct Payment Scheme till 1st April, 1989, can be considered for extension of UGC pay scale benefit. It is contended that the word “Direct Payment Scheme” so reflected in the resolution dtd.06.11.1990 is applicable to the “Teachers” and such direct payment of salary is not given to the ‘posts’ or ‘colleges’. 4.1. It is contended that the resolution dtd.06.10.1989 under Annexure- A/1 so issued by the Govt. in the Erstwhile Education & Youth Services Department for revision of pay scale of teachers in Colleges, was made applicable with various terms and conditions. However, vide Clause 3.1 of the terms and conditions the coverage of the resolution is made applicable to the following teachers :- “3.1. Coverage – The revised scales and other measures for improvement of standards in Higher Education shall be applicable to all categories of full time Teachers working in Page 14 of 28 // 15 // all affiliated Government Colleges and aided non- Government Colleges either covered or eligible to be covered under direct payment scheme till the 1st April 1989. The scheme will also be extended to full time eligible Teachers working in the College of Accountancy and Management Studies, Cuttack.” 4.2. Thereafter, Govt. issued another resolution on 06.11.1990 vide Annexure-B/1. Govt. while deciding to implement the scheme of revision of scale of pay for the college teachers vide Clause 2 held the resolution to be made applicable to such category of teachers. Clause 2 (1) provides as follows:- “2. Category of teachers to whom these instructions shall apply- (1) Save as otherwise provided by or under these instructions, these instructions shall apply to all categories of full-time teachers working in all aided non-Government Colleges either covered or eligible to be covered under Direct Payment Scheme till the 1st day of April, 1989.” 4.3. In the ‘Note’ appended to Clause 2(1), “Colleges” under these instructions shall mean aided Colleges, which have been given Govt. concurrence and University affiliation for opening of +3 Degree courses by the 1st April, 1989 and not thereafter. Vide Clause 2(vi) the instruction contained in the resolution dtd.06.11.1990 was not to apply to various categories of lecturers, which includes teachers appointed after 1st April, 1989 to teach in +2 courses in the existing Degree Page 15 of 28 // 16 // Colleges or +2 institutions. Placing reliance on the aforesaid two resolutions issued by the Govt. on 6th October, 1989 and 6th November, 1990 under Annexure-A/1 & B/1, learned State Counsel contended that the Petitioner admittedly was appointed as against the post of Lecturer in Chemistry (1st Post) in Kishorenagar College, Kishorenagar vide order of appointment issued on 24.08.1989. 4.4. It is contended that the Director of Higher Education, Odisha, Bhubaneswar vide office order dtd.01.05.1995 granted temporary recognition in favour of Kishorenagar College, Kishorenagar for opening of +3 Science stream with 48 seats i.e. 32 PCM and 16 CBZ group. Subsequently Utkal University vide its letter dtd.06.02.1996 granted affiliation to the +3 Degree Science courses in Kishorenagar College, Kishorenagar. It is contended that since the College was granted recognition to open +3 Science stream by the Director, Higher Education vide order dtd.01.05.1995 and affiliation was given by the University vide order dtd.06.02.1996, in view of the stipulation contained in the resolution dtd.06.10.1989 as well as 06.11.1990, Petitioner since was appointed on 01.09.1989 and his services was approved vide order dtd.24.11.1998 under Annexure-5 w.e.f.01.06.1995, Petitioner is not eligible and entitled to get the benefit of UGC scale of pay. Page 16 of 28 // 17 // 4.5. Not only that this Court when heard further argument from the learned counsels appearing for the Parties on 30.11.2023, an affidavit on behalf of Opp. Party Nos. 1 & 2 was filed in Court with service of copy on the learned counsel for the Petitioner. In the said affidavit, the following stand has been taken by the Opp. Party Nos. 1 & 2 in Para 6. Para 6 of the affidavit is reproduced hereunder:- “That it is respectfully submitted that Clause-2(2)(v) & (vi) of the Government resolution dated 06.11.1990 also provide that these instructions, shall not apply to the teachers who are appointed primarily in +2 Institutions existing as on 01.04.1989 including Intermediate Colleges converted to +2 Institutions and similarly the said instructions is also not apply to the teachers appointed after 01.04.1989 to teach in 22 Courses in existing Degree Colleges or +2 Institutions. In so far as the status of the Parent College of the Petitioner is concerned, admittedly Kishore Nagar College, Kishore Nagar got initially Government concurrence and affiliation for opening of traditional Intermediate Arts Courses during Session 1979-80 and the said 1.A. Stream has been brought under the fold of GIA w.e.f. 01.06.1984 and thereafter during the Session 1989-90 i.e. w.e.f.01.06.1989, +2 Science Wing was opened and got Government concurrence and affiliation from the State Government as well as CHSE respectively. In so far as the appointment of the present Petitioner is concerned, admittedly after opening of +2 Science Wing in the College, the Petitioner was appointed as Lecturer in Chemistry on 24.08.1989 by the then Governing Body of the advertisement issued on 06.07.1989, and accordingly the Petitioner joined in service on 01.09.1989. It is submitted that as per the document annexed by the Petitioner under Annexure-1, it is crystal clear that the very appointment of the Petitioner was made against the +2 Science Suvam. as by the time the Petitioner was appointed, 3 Science college the College pursuant to Page 17 of 28 // 18 // was not opened, and admittedly +3 Science college has only opened during the academic session 1993-94 which is much after he cut-off date. the Therefore, in view of Clause-2(2) (v) & (vi) of the Government resolution dated 06.11.1990, neither the institution Le 3 Science got Govt. concurrence and University affiliation prior to 01.04.1989, nor the petitioner was brought into the fold of direct payment system prior to 01.04.1989, for which the Petitioner is completely ineligible to be considered to avail the benefit of revised UGC Scale of Pay, and accordingly the Writ Petition is liable to be dismissed being devoid of merit.” 4.6. It is also contended that claiming similar extension of the benefit of the UGC scale of pay, Petitioner had earlier approached this Court in OJC No. 6616 of 2001. The said writ petition was disposed of by this Court vide order dtd.17.08.2002 with a direction on the State Authority to consider the grievance of the Petitioner. In terms of the order passed by this Court on 17.08.2002, the claim of the Petitioner was rejected by the Govt. on 04.09.2004 as is available under Annexure-11. It is contended that the rejection of his claim to get the benefit of UGC scale so made vide order dtd.04.09.2004 under Annexure-11 was never assailed by the Petitioner. But on the face of such rejection, Petitioner when made a fresh representation claiming extension of the benefit of UGC scale of pay without disclosing the order passed by the Govt. on 04.09.2004 under Annexure-11, this Court directed for consideration of the Petitioner’s claim. But in view of the stipulation contained in the Page 18 of 28 // 19 // resolution dtd.06.10.1989 and 06.11.1990 it was found that the Petitioner since joined in his service on 01.09.1989 and his services was only approved vide order dtd.24.11.1998 under Annexure-5, Petitioner is not eligible and entitled to get the benefit of UGC scale as claimed. 4.7. It is also contended that the College in question got Govt. concurrence and affiliation for opening of Intermediate Arts Course during the session 1979-80 and the Intermediate Arts Stream was brought under the fold of Grant-in-aid w.e.f.01.06.1984. Thereafter, during the session 1989-90, which commenced from 01.06.1989, +2 Science stream was opened and the College got Govt. concurrence and affiliation from the State Govt. as well as Council of Higher Secondary Education. After opening of the +2 science stream Petitioner was appointed as a Lecturer in Chemistry on 24.08.1989 and Petitioner in terms of the said order joined on 01.09.1989. Since +3 wing of the college only opened during the Academic Session 1993-94 and the Petitioner admittedly was appointed against the +2 science stream and +3 science stream got the recognition as well as affiliation much after the cut-off date i.e.01.04.1989, Petitioner on any count is not entitled to get the benefit of revised UGC scale of pay. Page 19 of 28 // 20 // 4.8. Learned AGA further contended that even though one of the claimant namely Smt. Bandita Dash got the benefit of UGC scale of pay after the cut-off date 01.04.1989, but the Petitioner cannot claim the same, as the order passed in the case of Bandita Dash Vs. State of Odisha reported in 1997 (II) OLR 241 was challenged before the Hon’ble Apex court and only when the State failed to get the relief before the Hon’ble Apex Court, the benefit was extended in favour of Smt. Bandita Dash. 4.9. In support of his aforesaid submission, learned AGA relied on a decision of the Hon’ble Apex Court in the case of Basawaraj and Anr. Vs. Special Land Acquisition Officer (2013) 14 SCC 81. Hon’ble Apex Court in the case of Basawaraj in Para 8 has held as follows:- “8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong Page 20 of 28 // 21 // order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745 : AIR 1995 SC 705] , Anand Buttons Ltd. v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565] , K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581 : AIR 2006 SC 898] and Fuljit Kaur v. State of Punjab [(2010) 11 SCC 455 : AIR 2010 SC 1937] .)” 4.10. With regard to fixation of the cut-off date of 01.04.1989, learned AGA contended that the said issue has been affirmed by the Hon’ble Apex Court in the case of State of Odisha & Anr. Vs. Aswini Kumar Das & Ors. ((1998) 3 SCC 613). Learned AGA accordingly contended that since in the present case the Petitioner was brought into the provisions of Grant-in-aid w.e.f.01.06.1995, which is much after the cut- off date i.e. 01.04.1989, Petitioner is not eligible and entitled to get the benefit as prayed for and his claim has been rightly rejected vide the impugned order dtd.24.09.2020 under Annexure-15. Hon’ble Apex Court in the case of Aswini Kumar Das in Para 11 to 13 has held as follows:- “11. It is next contended by the respondents that the cut-off date of 1-4-1989 prescribed in these two resolutions is arbitrary and irrational. It has deprived teachers of aided non-government colleges who were affiliated after 1-4-1989 from the benefit of the two resolutions. In the case of some of the teachers who are before us, the college in which they are working had applied for affiliation prior to 1-4-1989 Page 21 of 28 // 22 // but received affiliation at a later date. In case of other colleges, the application for affiliation as well as affiliation are from a later date. The respondents contend that at least in the case of those colleges which had already applied for affiliation prior to 1-4-1989, the teachers should get the benefit of revised UGC scales under the two resolutions. They rely upon a clarification issued by the Government of Orissa, Education Department, dated 22-8-1991 in respect of the resolution of 6-11-1990 where it is stated that the revised UGC scales of pay 1986 will be applicable to the teachers of a degree college which has received Government concurrence and university affiliation by 1-4- got irrespective 1989, temporary/provisional/permanent concurrence/affiliation. The clarification, however, cannot apply to a college which had merely applied for affiliation but had not received any kind of affiliation by 1-4-1989. whether has of it to relates contention 12. The only other the arbitrariness of the cut-off date of 1-4-1989. In this connection, the appellants have pointed out that the resolutions deal with the quantum of grant-in-aid which the State will provide, inter alia, to aided non-government colleges; and the basis on which such grant-in-aid will be provided. For this purpose the State will provide for revised scales of pay as per the University Grants Commission's recommendation. The State Government has framed a scheme for such grants-in-aid looking to its own financial resources and the number of educational institutions to which it will be required to give such grant. No educational institution can claim grant-in-aid as a matter of right. This is a matter of policy which the State Government will decide looking financial capacity and other relevant circumstances. There may be, as a result, differences in the pay scales of teachers of colleges affiliated prior to 1-4- 1989 and colleges affiliated subsequently, although neither of the resolutions prevent the colleges from giving higher pay scales if they so desire. In this context, the appellants have pointed out that even the extent of grant-in-aid varies from college to college, depending, for example, upon the number of years for which the college has been functioning. Since the entire burden of providing grants-in-aid is now on its to Page 22 of 28 // 23 // the State, the State regulates by policy the extent of aid and the colleges to which it will be given. 13. In the present case the State Government has decided to provide grants-in-aid to cover the revised UGC scales of pay for those teachers in existing colleges which have received Government concurrence and university affiliation on or before 1-4-1989. The date has a direct nexus with the date of the decision to provide for such higher pay scales in the grant-in-aid to be given to the colleges concerned. The date which is so fixed cannot be considered as arbitrary or unreasonable. Colleges which have secured Government concurrence or affiliation from the university after 1-4-1989, therefore, cannot claim any right to the higher grant-in-aid contrary to the policy as laid down by the State. The High Court was, therefore, not right in coming to the conclusion that the Note to para 2(1) of the government resolution of 6-11-1990, was arbitrary and unreasonable.” 5. Mr. P.K. Parhi, learned DSGI along with Mr. D. Gochhayat, learned CGC on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party No. 4. It is contended that University Grants Commission Act, 1956 was enacted by the Parliament under Entry 66 List II of VII Schedule of the Constitution with an objective to make provision to co-ordinate and determination of standards in Universities and as per the UGC Act, the Commission has to take all steps to enforce the letter and spirit and intention of legislature to fulfill the aim and object of such enactment. 5.1. It is contended that for fulfilling the constitutional responsibility for co-ordination, determination and maintenance of standard in Higher Page 23 of 28 // 24 // Education, Govt. of India, Ministry of Human Resource Development, Department of Education, University Grant Commission vide its Notification dtd.17.06.1987 under Anenxure-6 and 22.07.1988 under Annexure-7 decided to implement the scheme for revision of pay scales of teachers in Universities and Colleges w.e.f.01.01.1986 with certain terms and conditions. 5.2. Further University Grant Commission in the year 1998 issued a fresh circular on 24.12.1998 under Annexure-7/1 to comply the notification so issued by the Commission on 17.06.1987 and 22.07.1988 under Annexure-6 & 7. But in the said notification issued on 24.12.1998 under Annexure-7/1 it was indicated that the scheme of revision of pay scales, together with all the conditions attached to it, would be implemented by the State Government as a composite scheme without any modifications, expect the date of implementation and scale of pay as indicated in the Notification dtd.22.07.1998 and 22.09.1998. 6. To the stand taken in the counter filed by the Opp. Party Nos. 1 & 2, a rejoinder affidavit has been filed by the Petitioner. Basing on the stand taken in the rejoinder affidavit learned counsel for the Petitioner contended that the issue decided in the case of Aswini Kumar Das as Page 24 of 28 // 25 // cited supra is not applicable to the case of the present Petitioner as in the said case some vital points have not been taken into consideration and the Judgment is a deficient one as it has not been passed basing on the guideline issued by the University Grant Commission under Annexure-6, 7 & 7/1. 6.1. It is also contended that UGC Act being a Central Act, it is binding and it is above the State policy. Without following the guideline issued by the Commission, the State Govt. cannot act contrary to the said guideline. It is also contended that central policy will prevail over the state policy as because it is within the concurrent list. It is accordingly contended that since the cut-off date 01.04.1989 so fixed by the Govt. in its resolution dtd.06.10.1989 and 06.11.1990 under Annexure-A/1 & B/1 is contrary to the guideline issued by the UGC under Annexure-6, 7 & 7/1, fixation of such a cut-off date is not sustainable in the eye of law and Petitioner in view of the guideline issued under Annexure-6, 7 & 7/1 is eligible and entitled to get the benefit of UGC scale of pay w.e.f.01.09.1989 with quashing of the impugned order dtd.24.09.2020 under Annexure-15. Page 25 of 28 // 26 // 7. I have heard Mr. A. Swain, learned counsel for the Petitioner, Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the State-Opp. Parties and Mr. P.K. Parhi, learned DSGI along with Mr. D. Gochhayat, learned CGC appearing for the Opp. Party No. 4. On the consent of the learned counsel appearing for the Parties the matter was heard at the stage of admission finally and disposed of by the present order with due exchange of the pleadings. 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Petitioner was appointed as a Lecturer in Chemistry (1st Post) in Kishorenagar College, Kishorenagar, where he joined on 01.09.1989. Petitioner while continuing as such, acquired the Ph.D. qualification, notification of which was issued by the Utkal University vide Notification No. 398 dtd.26.02.2005. It is found from the record that the College in question during the academic session 1989-90, which commenced from 01.06.1989, was permitted to open +2 science stream. The College thereafter got the Govt. concurrence and affiliation from the Council of Higher Secondary Education. The Petitioner admittedly was appointed as a Lecturer in Chemistry (1st Post) in the +2 Science steam of the college Page 26 of 28 // 27 // vide order of appointment issued on 24.07.1989 and with date of joining as 01.09.1989. 8.1. It is found from the record that +3 science stream was opened during the academic session 1993-94 with due recognition vide order dtd.01.05.1995 of the Director, Higher Education. The college got the affiliation to provide +3 science courses from Utkal University vide order dtd.06.02.1996. It is also found from the record that the services of the Petitioner as against the post of Lecturer in Chemistry (1st Post) was approved by the Govt. vide order dtd.24.11.1998 under Annexure-4 w.e.f.01.06.1995. 8.2. In view of such position and in view of the stipulation contained in Resolution dtd.06.10.1989 and 06.11.1990, since the +3 wing of the college got the recognition and affiliation much after the cut-off date and the services of the Petitioner was also approved with release of Grant-in- aid in his favour after the cut-off date so fixed in the resolution, this Court finds no illegality or irregularity with the impugned order. This Court in view of the decision of the Hon’ble Apex Court in the case of Aswini Kumar Das as cited (supra) is not inclined to held the cut-off date 01.04.1989 as illegal. Not only that the claim of the Petitioner to get Page 27 of 28 // 28 // the UGC scale of pay though was earlier rejected by the Govt. vide order dtd.04.09.2004 under Annexure-11 and the same having never been challenged by the Petitioner, the prayer as made in the present writ petition to extend the benefit of UGC scale of pay is also not entertainable. Claim for parity as claimed by the Petitioner is also not acceptable to this Court in view of the decision of the Hon’ble Apex Court in the case of Basawaraj (as cited supra) and the affirmation of the cut-off date by the Apex Court in the case of Aswini Kumar Das. 9. In view of such position, this Court is not inclined to interfere with the impugned order and dismiss the writ petition. Orissa High Court, Cuttack Dated the 15th of December, 2023/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Dec-2023 11:18:02 Page 28 of 28