Afr Thomas Kerketta vs State Of Orissa And Others
2021 Latest Caselaw 923 Ori

                   ORISSA HIGH COURT: CUTTACK

                            W.P.(C) NO. 17962 of 2009

           In the matter of an application under Articles 226 and 227
           of the Constitution of India.
                                    ---------------

  AFR      Thomas Kerketta                        .....        Petitioner


                                         -Versus -

           State of Orissa and others             .....      Opp. Parties


                For Petitioner   :      M/s. A.K. Mishra-2 and
                                        M.K. Mallick, Advocates.

                For Opp. Parties:       Mr. B. Satpathy,
                                        Standing Counsel S&ME


           P R E S E N T:

               THE HONOURABLE DR. JUSTICE B.R.SARANGI

                              Decided on : 28.01.2021


DR. B.R. SARANGI, J.        The petitioner, who was appointed as an

Assistant Teacher in the Mission Minority Primary School

and on attaining the age of superannuation retired from

service w.e.f. 28.02.1995, has filed this writ petition

seeking to quash Annexure-2 dated 12.12.2005 rejecting

his claim for getting pension and other retirement benefits

as deemed and admissible to the post w.e.f. 01.03.1995

along with interest.

2. The factual matrix of the case, in hand, is that

in order to improve and create a literacy atmosphere

within the children of backward class of Sundargarh

district, more than 200 educational institutions were

established by the Christian Community which were

managed by Catholic Board of Education, a registered

society, having its Head Office at 'Bishop's House,

Hamirpur, Rourkela. Mission Minority Primary Schools

established by the Christian Community are protected

under Article 30 of the Constitution of India and the

primary schools, which were established and recognized at

different points of time having been eligible, were brought

under the grant-in-aid fold and became fully aided

educational institutions. The petitioner, having got

requisite qualification and being selected, was appointed

as Assistant Teacher in Mission Minority Primary School.

Consequentially, he joined in such post on 01.10.1962.

On attaining the age of superannuation, he was issued

with notice of superannuation and consequentially he was

relived from his duty on 28.02.1995, while serving at

Kutunia Primary School, Kutunia, Sundargarh.

2.1 The petitioner, being an employee of aided

educational institution, having not been extended with the

retiral benefit, had approached this Court by filing W.P.(C)

No. 10915 of 2003. This Court, vide order dated

12.03.2004, disposed of the writ petition with an

observation that Inspector of Schools, Sundargarh Circle,

Sundargarh shall scrutinize the pension papers of the

petitioner in consonance with the ratio decided in the case

of "Patras and Benedict" and on scrutiny if it is found that

the petitioner is entitled to pension, pass necessary orders

for disbursement of the same within six months from the

date of communication of the order. On submission of

such pension papers, along with copy of the order passed

by this Court, opposite party no.3-Inspector of Schools,

Sundargarh Circle, Sundargarh, vide order dated

12.12.2005, rejected the claim of the petitioner for grant of

pension on the ground that his case is neither coming

under the Orissa Aided Educational Institution Employees

Retirement Benefits Rules, 1981 (for short "Rules, 1981)

nor O.E. (Minority Managed Aided Educational Institution

Employees "Method of Recruitment and Conditions of

Service") Order, 2003 (for short "O.E. Order, 2003") and,

as such, the petitioner having retired from service with

effect from 28.02.1995 is not entitled to get pensionary

benefits as prayed for. Hence, this writ petition.

3. Mr. A.K. Mishra-2, learned counsel for the

petitioner contended that admittedly the petitioner was

serving in Mission Minority Primary School, which is a

fully aided educational institution, and as per the

resolution dated 11.07.1984 passed by the Government of

Odisha in Education & Youth Services Department, the

provisions of the Rules, 1981 are applicable to the

institutions established and administered by minorities for

extension of retirement benefits and that O.E. Order, 2003

is a beneficial one for payment of pension to the retirees.

It is further contended that eligibility to grant retirement

benefits to the employees of minority institutions no more

remains res integra in view of the decisions of this Court in

Patras Soreng v. State of Orissa, 1993 (II) OLR 272, as

well as in Benedict Xalxo v. State of Orissa & others,

OJC No. 5556 of 1993 disposed of on 17.01.1997. The

petitioners in both the above noted writ petitions were

retired prior to 01.04.1997 and were allowed to receive

pension. Thereby, contended that the rejection order

passed by the Inspector of Schools is an outcome of non-

application of mind and as such hits by Articles 14, 21,

30(2) and 39(d) of the Constitution of India.

4. Mr. B. Satpathy, learned Standing Counsel for

School and Mass Education Department contended that

since the institution itself is a minority institution, Orissa

Education Act is not applicable and more so referring to

the impugned order contended that the Order, 2003,

which was given effect to from 01.04.2003 wherein Rule

29(1) provides retirement benefits under the said Order,

2003 to the employees of aided educational institution

under minority managed institution retiring on or after

01.04.1997 and accordingly employees retiring on or after

01.04.1997 shall be eligible to get the pensionary benefits.

Since the petitioner retired from service prior to

01.04.1997, i.e. to say on 28.02.1995, even under the

revised rules the pensionary benefits are not admissible to

him. Thereby, opposite party no.3 is well justified in

passing the order impugned dated 12.12.2005 in

compliance of order dated 12.03.2004 passed by this

Court in W.P.(C) No. 10915 of 2003 and accordingly the

writ petition is liable to be dismissed.

5. This Court heard Mr. A.K. Mishra-2, learned

counsel for the petitioner and Mr. B. Satpathy, learned

Standing Counsel for School and Mass Education

Department by virtual mode, and perused the record.

Pleadings having been exchanged between the parties and

with the consent of the learned counsel for the parties, this

writ petition is being disposed of finally at the stage of

admission.

6. The facts, as delineated above, are not in

dispute. The institution having been established by the

Christian Minority is a fully aided educational institution,

as has been pleaded in the writ petition, which fact has

not been disputed by way of filing counter affidavit.

Therefore, employees of aided educational institution are

entitled to retirement benefits, as provided in the Rules,

1981. Rule-3 of the Rules, 1981, however, states that the

same shall apply, inter alia to the teaching staff, as was

the petitioner, of such schools which come under the

direct payment system. The proviso to that rule permits

the Government to apply the Rules to any other

educational institution or category of institutions as may

be specified by general or special order. It is the

requirement of the school to be under the "direct payment

system" which has stood in the way of the petitioner in

getting the benefit under the Rules, inasmuch as no

pleadings have been made to that extent by opposite party

no.4 in its counter affidavit that the school in question is

not coming under the direct payment system.

7. The school in question admittedly is a fully

aided minority educational institution. Before proceeding

further, this Court is to examine the nature and character

of the institution from which the petitioner has retired

from service. There is no dispute that the petitioner is

continuing in an institution belonging to a minority

community. The word 'minority' has not been defined in

the Constitution.

8. In 1928, the Motilal Nehru Report showed a

prominent desire to afford protection to minorities, but did

not define the expression.

9. In 1945, the Sapru Report also proposed, inter

alia, a Minorities Commission but did not define minority.

But the Union Sub-Commission on Prevention

of Discrimination and Protection of Minorities has defined

'minority' by an inclusive definition which reads as

follows:-

"(i) The term 'minority' includes only those non-

document groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly

different from those of the rest of the population.

(ii) Such minorities should properly include a number of persons sufficient by themselves to preserve such traditions or characteristics; and

(iii) Such minorities must be loyal to the State of which they are nationals."

10. Section 2(c) of the National Commission for

Minorities Act, 1992 defines the word 'minority' which

reads as under:-

"Minority, for the purpose of the Act, means a community notified as such by the Central Government."

The Government notified Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as minority communities on October 23, 1993. However, explanation (ii) to Art.25(2)(b) of the Constitution still provides that in sub-clause (b) of Cl.(2) the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly."

11. In T.M.A. Pai Foundation v. State of

Karnatak, (2002) 8 SCC 481, considering Article 30 of the

Constitution of India, the apex Court held as follows:-

"The word 'minority' occurring in Article 30 is not defined in the Constitution, but literally it means 'a non-dominant' group. It is a relative term and is referred to represent the smaller two numbers, sections or group called 'majority'. In that sense,

there may be political minority, religious minority, linguistic minority, etc."

12. In P.A. Inamdar v. State of Maharashtra, AIR

2005 SC 3226, the apex Court observed that the word

'minority' literally means 'a non-dominant' group.

13. Now, taking into consideration the above aspect,

the "minority educational institution" has been defined

under Rule-2(1)(f) of A.P. Educational Institutions

(Establishment, Recognition, Administration and Control

of Schools under Private Managements) Rules, 1993,

which has been taken into consideration in Government

of A.P. v. K. Brahmanandam, (2008) 5 SCC 241, to mean

any educational agency of which at least 2/3rd members

belong to a religious/linguistic minority.

14. In P.A. Inamdar v. State of Maharashtra, AIR

2005 SC 3226 : AIR 2005 SC 3226, the apex Court held as

follows:-

"So long as an institution retains its minority character by achieving and continuing to achieve its twin objectives, i.e., (i) to enable such minority to conserve its religion and language and (ii) to give a thorough, good, general education to children belonging to such

community, the institution would remain a 'minority institution' under Article 30(1) of the Constitution."

15. The Mission Minority Primary School having

satisfied the requirement, as mentioned above, is

considered to be a minority educational institution, which

was running with full aid received from the Government.

Therefore, Rule 9(1) of the Orissa Education (Recruitment

and Conditions of Service of Teachers and Members of the

Staff of Aided Educational Institutions) Rules, 1974 (in

short "Rules, 1974") has stated, after its amendment in

1976, that every employee of an aided educational

institution shall ordinarily be paid in the month following

the month to which the claim relates directly by the

Government or by any Officer or by any agency authorized

by Government. The position, therefore, is that after the

aforesaid 1974 Rules were amended in 1976, a member of

the staff of an aided educational institution receives his

salary directly from the Government, and, as such, such a

school has to be regarded as under the direct payment

system of which Rule 3 of the Rules speaks of.

16. It may be that before the aforesaid 1974 Rules

were amended in 1976, there used to be a distinction

between schools receiving aid under the direct payment

system and otherwise, which would appear to be so, inter

alia, from what has been stated in Government Resolution

No. 250011/EYS dated 13.07.1978 which has said

something about the direct payment system being not

applicable to educational institutions run by the Christian

minority community. The 1976 amendment, to which

reference has been made, however, leaves no manner of

doubt that a school which is fully aided, as is the one at

hand, has to be regarded as one under the direct payment

system, of which mention has been made in Rule-3 of the

Rules.

17. As to the aforesaid Government resolution, a

distinction can be made between minority institutions and

non-minority institutions as regards the direct payment

system, the same cannot override the statutory rules of

1974 as amended in 1976, because of which that

resolution and for that matter such other resolutions could

not and did not hold the field.

18. In view of such position, Rule-3 of the Rules,

1981 and Rule-9 of Rules, 1974, as amended in 1976, the

members of the staff of an aided educational institution

receiving salary directly from the Government are to be

regarded as one under the direct payment system.

Thereby, the resolution dated 13.07.1978 stating that

Christian minority schools are not coming under the direct

payment system cannot override the Rules, 1974, as

amended in 1976.

19. The contention raised that since the petitioner

retired from service on 28.02.1995, in view of the

provisions contained in the Order, 2003, he is not entitled

to get retiral benefit as the cutoff date has been fixed as

01.04.1997 entitling the employees of the minority

institution to get their retirement benefit. The said Rule

shall be applicable to the persons those who retired after

01.04.1997 and, as such, the Order, 2003 has come to

force in 2003 after the retirement of the petitioner, i.e., on

28.02.1995 and, therefore, by the time the petitioner

retired from service on 28.02.1995, the Rules which were

governing the field are applicable to him. This question has

no more remained res integra, in view of the judgment

passed by this Court in Patras Soreng (supra) and the

said judgment was challenged before the apex Court by the

State by preferring SLP No. 14506 of 1994 (State of

Orissa v. Patras Soreng), which was dismissed by the

apex Court. Thereby, the judgment passed by this Court

in Patras Soreng (supra) has reached its finality.

Similarly, in the case of Benedict Xalxo v.

State of Orissa & others (OJC No. 5556 of 1993

disposed of on 17.01.1997), this Court has taken similar

view that of Patras Soreng (supra) and in both the cases

the petitioners were employees of minority institution.

Thereby, the ratios decided in those cases are squarely

applicable to the present case and the petitioner cannot be

discriminated on any count.

20. In that view of the matter, the order dated

12.12.2005 passed by the Inspector of Schools,

Sundargarh Circle, Sundargarh in Annexure-2 rejecting

the claim of the petitioner to grant retirement benefits

cannot sustain in the eye of law and the same is liable to

be quashed and is hereby quashed. The opposite party

no.3 is directed to pay pension and other retirement

benefits as due and admissible to the petitioner w.e.f.

01.03.1995, as he retired from service on attaining the age

of superannuation w.e.f. 28.02.1995, by making proper

calculation. The entire exercise shall be completed within a

period of four months from the date of communication of

this judgment.

21. In the result, the writ petition is allowed. No

order as to costs.

..............................

DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 28th January, 2021, Ashok/GDS