Orissa High Court
Gangadhar Martha vs Director on 8 April, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) No.2800 of 2013
Gangadhar Martha .... Petitioner(s)
Mr. D.N. Rath,
Advocate
-versus-
Director, Elementary Education .... Opposite Party(s)
Mr. R.K. Samal,
Standing Counsel
CORAM:
JUSTICE BISWANATH RATH
JUDGMENT
Order No. 08.04.2022
03. 1. Hearing of this matter is undertaken for the same being
transferred from the State Administrative Tribunal to this Court on
closure of such establishment.
2. This application involves a challenge by a superannuated
Teacher involving Annexure-7 an order of the competent authority
giving direction in the matter of examining the entitlement of the
Petitioner and taking steps for recovery.
3. This application involves the following relief:-
"Relief(s) sought:-
In view of the facts mention in paragraph-6 above,
the applicant prays for the following relief(s).
Under the above circumstances, it is therefore,
humbly prayed that this Hon'ble Tribunal be
graciously plead to quash the order passed by the
opposite party no.3 bearing No.32961 dated
20.06.2013 vide Annexure-7 to the writ application and
be pleased to direct the opposite party no.2 to re-submit
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the pension paper and service book of the petitioner to
the opposite party no.3 and the Hon'ble Tribunal be
pleased direct the opposite party no.3 to
sanction/approve the financial pension of the petitioner
taking into account the last pay drawn by the petitioner
on the date of his superannuation and to release the
final pension in favour of the petitioner without any
further delay."
4. Short background involved in this case is that Petitioner
being an untrained graduate was appointed as a Primary School
Teacher on 29.01.1980 vide Annexure-1. Consequent upon which,
the Petitioner joined on 31.01.1980. While the Petitioner was
continuing as such, the State Government through the Secretary,
Education & Youth Services Department issued a communication on
25.08.1982 bringing therein a scope for providing the scale attached
to the Trained Matric Post w.e.f. the date of issuance of the said
resolution/communication, particularly to the untrained persons but
having higher qualification and continuing as teacher in Primary,
M.E., High Schools against the Trained Matric Posts and enjoying
salary of Rs.225/- per month. By operation of this resolution, the
Petitioner's scale was fixed to the Trained Matric scale w.e.f.
25.08.1982. For the subsequent revision in the scale of pay by virtue
of the Orissa Revised Pay of Rule, 1998 the Petitioner's scale was
revised to Rs.3600-100-5600 w.e.f. 1.01.1996 by issuing
communication dated 16.11.2001 at Annexure-3. For the taking
effect of the next revision in the ORSP Rules, 2008 the Petitioner's
scale was again revised w.e.f. 1.01.2006 with the scale of pay of
Rs.5200-20,200/- with grade pay of Rs.2200/-. While working as
such the Petitioner was superannuated on 31.12.2010. It is, after
almost three years on 20.06.2013 issuing an order at Annexure-7
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impugned herein, the Control of Accounts communicated the
District Inspector of Schools, Nayagarh that since the teacher
involved was not a trained, his case may be examined for entitlement
for the Trained Matric Scale of pay and excess amount drawn, if any
including unutilized leave salary may be suggested for recovery
from the gratuity amount.
5. Being aggrieved by this order Mr. Rath, learned counsel for
the Petitioner taking this Court to the pleadings and the development
indicated hereinabove involving the entitlements of the Petitioner to
the Trained Matric Scale of pay after 25.08.1982, contended that the
entitlement indicated hereinabove was made by virtue of a resolution
of the competent authority at the relevant point of time and further
since the Petitioner had been allowed to superannuate since
31.12.2010, there was no scope for issuing such direction. Further
while issuing the direction at Annexure-7, no opportunity was also
given to the Petitioner to satisfy the authority regarding his
entitlements. Again referring to the provision at Rule 7(2) (b)(II) of
the Odisha Civil Service Pension Rules, 1992 Mr. Rath, learned
counsel for the Petitioner contended that assuming that there was
any reason to proceed against the Petitioner involving any such
entitlement, but as the Petitioner is already superannuated, for the
provision indicated hereinabove there was no scope for initiating any
proceeding for recovery involved after the period of limitation
prescribed therein. Mr. Rath, learned counsel for the Petitioner also
takes help of the decision in the case of P. Satyanarayana Patro
Vrs. Odisha Power Transmission Corporation Limited, as reported
in 2009 Vol.I OLR, 989 and contended that this decision has direct
application to the case of the Petitioner. It is, in the process Mr.
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Rath, learned counsel for the Petitioner requested this Court for
interfering in the impugned order at Annexure-7 and passing
appropriate order. Mr. Rath, learned counsel for the Petitioner also
referring to a decision of the Division Bench of this Court in the case
of Lambodhara Panda Vrs. State of Orissa and others in O.J.C.
No.12807 of 2001 contended that in similar situation involving a
different person this Court has already deprecated such action of the
competent authority in allowing the writ petition.
6. Mr. Samal, learned Standing Counsel for the School & Mass
Education Department in his opposition while not disputing the facts
and the developments taken place indicated hereinabove and also
taken place till 31.12.2010, however taking this Court to the
observation in the order at Annexure-7, made an attempt to justify
the impugned order. Mr. Samal, learned Standing Counsel
contended that there is force in such communication and for there is
wrong entitlement made in favour of the Petitioner requested this
Court not to interfere in such orders. Further for the involvement of
financial issues, Mr. Samal, learned Standing Counsel contended
that in the event this Court interferes in the impugned order, there
will be financial loss to the State exchequer. In the process,
Mr. Samal, learned Standing Counsel attempted to establish the
action of the State-Authorities and also attempted for dismissal of
the application involved.
7. Considering the rival contentions of the parties this Court
finds, undisputed fact remains; the Petitioner was an untrained
graduate Primary School Teacher. It is, while the Petitioner
completed two & half years of service, the State Government in its
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wisdom had brought a resolution/communication dated 25.08.1982.
Clause (iv)(v) therein reads as follows:
"(iv) Untrained persons having higher
qualification already continuing as teacher in Primary,
M.E., High Schools against trained matric posts and
enjoying fixed salary of Rs.225/- P.M. will also get
the scale prescribed for trained matriculates with
effect from the date of issue of this resolution and
they may continue against the posts in the above scale
of pay if they like.
(v) This resolution will take effect from the date of
issue.
Order :- Ordered that the Resolution be published in
the next issue of the Orissa Gazettee for
general information.
Ordered also that the copies of the
resolution be forwarded to all Departments
of Government/All Heads of Departments
all concerned."
There is, however, no denial to the bringing in such
resolution and its operationalization.
8. Further, the ordering portion therein also makes it clear that
the resolution involved will be effected from the date of issuance of
such resolution and the resolution was also directed to be published
in the next issue of Orissa Gazette for general information. Further
after the Gazette notification is brought, not only the Petitioner has
been brought to the regular scale attached to Trained Matric School
teacher w.e.f.15.12.1982, but there has also been several revisions in
the scale of pay of the Petitioner. It also further becomes clear that
the Petitioner has been allowed to superannuate on his attaining the
age of superannuation on 31.12.2010. This Court here observes, in
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the event the State Authorities were in a different mind to disentitle
the Petitioner from the Trained Matric Scale of pay, nothing
prevented the competent authority to at least initiate such proceeding
during continuance of the Petitioner in service. Law has been well
settled that after retirement of a person, there will be no master and
servant relationship between the employee and the employee.
Further, looking to the provision at Rule 7(2) (b)(II) of the Odisha
Civil Service Pension Rules, 1992 this Court finds, recovery of this
nature if involves the proceeding required to be initiated at least
within 3 years from the date of detection of wrong entitlement, if
any. This Court while finding the provision protects the interest of
the Petitioner and opposes the move of the State Authorities, again
also finds the Petitioner was made entitled to the Trained Matric
Scale of pay since 25.08.1982 and the action of the State Authorities
vide Annexure-7 for being initiated on 20.06.2013 almost after three
decades, was otherwise also not permissible in the eye of law. This
Court here also finds, the case of the Petitioner also gets support of
the judgments referred to hereinabove.
It is, in the circumstance, this Court finds, the order at
Annexure-7 is not sustainable in the eye of law. While setting aside
the same, this Court directs, as the Petitioner has already been
superannuated since 2010, in the event any entitlement of the
Petitioner is withheld in the guise of Annexure-7, all such
entitlement shall be released in favour of the Petitioner with interest
@6% per annum allthrough, by completing such exercise within a
period of one month from the date of order of this Court.
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9. The WPC(OAC) succeeds, but in the circumstance, there is
no order as to costs.
(Biswanath Rath)
Judge
Ayaskanta Jena
