Rama Chandra Sahoo vs State Of Odisha & Others
2022 Latest Caselaw 4038 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                WPC(OAC) No.3264 of 2017

     In the matter of an application under Section 19
     of the Administrative Tribunals' Act, 1985.
                          ..................

  Rama Chandra Sahoo                  ....                 Petitioner

                               -versus-

  State of Odisha & Others            ....         Opposite Parties


         For Petitioner            :M/s. J.K. Rath
                                    Sr. Advocate

         For Opp. Parties          :M/s. Biplab Mohanty
                                    Standing Counsel

     PRESENT:

     THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

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 Date of Hearing: 19.7.2022 and Date of Order: 17.8.2022
----------------------------------------------------------- --------------------

Biraja Prasanna Satapathy, J.

1. Heard Mr. Jayanta Kumar Rath, learned

Senior counsel appearing for the petitioner and Mr.

Biplab Mohanty, learned Standing Counsel appearing

for the Opp. Parties.

2. The present writ petition has been filed by the

petitioner challenging the order dated 10.5.2017

passed by the Government-Opp. Party No.1 under

Annexure-27 and with a further prayer to extend the // 2 //

benefit of the sale of pay as applicable to the post of

Headmaster since December, 1991. It is submitted

that the Petitioner with having qualification of trained

graduate was initially appointed as Headmaster in Shri

Pingaleswar Vidyapith on10.11.1984 which was an

unaided educational institution at the relevant point of

time. It is submitted that even though the petitioner

was duly appointed but when his services were

terminated by the newly constituted Managing

committee vide order dated 7.11.1986, the petitioner

challenging the same approached the learned State

Educational Tribunal. It is submitted that when

learned Tribunal held the application as not

maintainable as the institution was an unaided one,

the petitioner challenging the said order of termination

preferred an appeal before the Director, Secondary

Education-Opp. Party No.2. It is submitted that when

the said appeal was rejected by the Opp. Party No.2,

the petitioner challenging the said order of termination

as well as the order of Opp. Party No.2 approached this

Court in OJC No.3490 of 1990. This Court vide its

order dated 27.2.1991 under Annexure-1 held that the

petitioner is to function as Headmaster of the School

// 3 //

and directed accordingly. It is submitted that

challenging the said order passed by this Court on

27.2.1991, the Managing Committee of the School

when filed an application for modification of the said

order, the same was rejected by this Court vide its

order dated 25.7.1991 under Annexure-2. It is further

submitted that in spite of such order when the joining

report of the petitioner was not accepted by the

Managing Committee, the petitioner filed Original

Criminal Misc. Case No.62 of 1991 and this Court in its

order dated 17.1.1992 awarded imprisonment of seven

days to the contemnor-Secretary of the Managing

Committee under Annexure-3. It is submitted that the

petitioner finally vide order dated 11.2.1992 under

Annexure-4 was allowed to function as Headmaster of

the School. But it is submitted that by the time the

petitioner was allowed to function as Headmaster, the

school was already notified to be an aided educational

institution w.e.f 5.1.1990. Therefore, it is submitted

that the petitioner became eligible to get the

Headmaster's scale of pay w.e.f December, 1991 and

moved the Opp. Party No.3 in that regard. As the said

benefit was not extended, the petitioner approached

// 4 //

this Court in OJC No.6171 of 1992. This Court vide

order dated 11.9.1992 disposed of the said Writ

Petition with the following direction:

The petitioner claimed to be entitled to receive the Headmaster's scale of pay since December, 1991 as on that date he has completed seven years of teaching experience as a trained graduate teacher. The petitioner has moved the Inspector of Schools under Annexure-3 dated 20.2.1992, but has not received any communication from the Inspector. The Director of Secondary Education is the final authority in this regard, but the Inspector of Schools is supposed to hold an enquiry and make necessary recommendation. In the aforesaid premises, we dispose of this application by calling upon the Inspector of Schools, Cuttack-1 Circle (Opposite party No.2) to hold an enquiry into the service particulars of the petitioner and if he is satisfied that the petitioner has in fact completed seven years of teaching experience as a trained graduate teacher, then he may make the necessary recommendation to the Director within a period of two months from the date of receipt of our order. The Director may also pass final orders within a period of three months from the date of receipt of the recommendation from the Inspector. This application is disposed of accordingly. Requisites for issuance of writ be filed by Monday."

3.      It    is   submitted        that    in    the     meantime,

challenging    the    order     passed      by    this    Court        on

27.2.1991 in OJC No.3490 of 1990 under Annexure-1,

the Managing Committee of the School approached the

Hon'ble Supreme Court in SLP(Civil) No.16215 of 1991

and the said SLP was dismissed by the Hon'ble Apex

Court vide order dated 14.10.1992 under Annexure-5.

It is accordingly submitted that in view of such

dismissal of the matter by the Hon'ble Apex Court, the

order passed by this Court on 25.7.1991 under

// 5 //

Annexure-1 attained finality. Mr. Rath, learned Senior

counsel for the petitioner submitted that subsequently

vide order dated 14.5.1993 under Annexure-6, the

petitioner was allowed to draw the Headmaster's scale

of pay w.e.f 10.11.1991. It is submitted that the said

order under Annexure-6 was passed in terms of the

order passed by this Court on 11.9.1992 under

Annexure-4. Mr. Rath, learned Counsel for the

petitioner submitted that while the petitioner was in

receipt of the Headmaster's scale of pay in terms of

order issued under Annexure-6, Opp. Party No.2 vide

his letter dated 24.7.1993 under Annexure-7 directed

Opp. Party No.2 not to release the Headmaster scale of

pay in respect of those who are covered as per the

circular issued by the Government. It is submitted

that since in the letter under Annexure-7, the name of

the petitioner was reflected at Sl. No.12, the petitioner

challenged the same before this Court in OJC No.7188

of 1993. It is submitted that this Court vide order

dated 17.11.1994 under Annexure-8 quashed the

direction so far as it relates to the petitioner and

directed that the petitioner shall be paid Headmaster's

scale of pay. Order dated 17.11.1994 passed in OJC

// 6 //

No.7188 of 1993 under Annexure-8 is quoted herein

below :

The petitioner was appointed as Headmaster of the school on 10.11.84 while the school was an unaided school. The school became eligible to receive grant-in-aid with effect from 1.3.87 and as such became an aided educational institution within the meaning of Section 3(b) of the Orissa Education Act, with effect from that date. When the question of approval of the staff was considered by the Inspector the Inspector approved the petitioner's appointment as Headmaster-in-charge by order dated 19.2.1992. The petitioner had required seven years teaching experience which is necessary for being appointed as Headmaster in 1991. Being aggrieved by the order of approval of the Inspector, the petitioner had approached this Court in O.J.C. NO.6171 of 1992 claiming that he is entitled to get Headmaster's scale of pay. This Court while disposing of the aforesaid application by order dated 11.9.92 called upon the Inspector to hold an enquiry into the matter and decide the question of petitioner's entitlement to the Headmaster's scale of pay. Pursuant to the aforesaid direction of this Court, the Inspector-Opposite party NO.3 enquired into the matter and by order dated 17.5.93, the Director approved the petitioner's entitlement as Headmaster and directed that he should be allowed to draw Headmaster's scale of pay in accordance with the aforesaid order of the Director, annexed at Annexure-6, the Inspector of Schools passed the order on 28.5.93, annexed as Annexure-7, granting the Headmaster's scale of pay to the petitioner. The petitioner's pay was fixed by order dated 5.6.93 annexed as Annexure-8. While he was receiving pay for the month of June and July, 1993, the order of abeyance was passed under Annexure-10. The petitioner therefore has approached this Court. Mr. Rath for the petitioner contends that pursuant to the direction of this Court, the Inspector having enquired into the matter and having come to the conclusion that the petitioner is entitled to be approved as Headmaster of an aided education institution and is entitled to receive the scale of pay which is admissible to the Headmaster and the Director having passed the order allowing the petitioner to draw the Headmaster's scale of pay and that scale having been given to the petitioner, there was no reason to keep that order in abeyance.

Pursuant to the notice issued, a counter affidavit has been filed wherein it has been stated that in view of the decision of the Full Bench of this court, the Government had issued the order for keeping the similar orders in abeyance and that in why the earlier order giving Headmaster's scale of pay to the petitioner was kept in abeyance. That the petitioner had the required qualification for being appointed as Headmaster is not disputed It is further not disputed that he has been

// 7 //

appointed as Headmaster by the Managing Committee when the school was an unaided educational institution. But on the date the petitioner's case for approval was considered, the petitioner had already acquired the minimum seven years' teaching experience as a Trained Graduate Teacher. Therefore, there was no embargo for approving his appointment as Headmaster. Be that as it may, the petitioner having approached this Court in OJC NO.6171 of 1992 and this Court having called upon the Inspector to hold an enquiry into the matter and pursuant to the aforesaid direction, the Inspector having enquired into the matter and on the basis of his recommendation, the Director having passed the final order granting the Headmaster's scale of pay to the petitioner, in our considered opinion the petitioner was entitled to be approved as the Headmaster of an aided educational institution and as such entitled to the Headmaster's scale of pay which was rightly granted to him by the Director as per Annexure-6.

We accordingly quash the impugned order under Annexure-10 and direct that the petitioner shall be paid Headmaster's scale of pay.

The writ application is disposed of."

4. It is submitted that the said order passed by

this Court on 17.11.1994 was never challenged by the

State-Opp. Parties and accordingly it attained finality

in the eye of law and binding on all concerned. Mr.

Rath, learned Senior Counsel further submitted that

while the matter stood thus, the petitioner's school was

taken over by the Government w.e.f 7.6.1994 vide

notification dated 16.12.1994. It is submitted that

after such taken over of the School, when the

Headmaster's scale was not released in favour of the

petitioner, the petitioner filed Original Crl. Misc. Case

No.203 of 1995. It is submitted that in the said

contempt proceeding, affidavit was filed indicating that

// 8 //

the petitioner shall be paid the Headmaster's scale of

pay by 30.9.1995. The petitioner was accordingly

released with his headmaster scale of pay. It is further

submitted that after the school has taken over by the

Government, 196 posts of Headmaster was created in

the taken over school for grant of headmaster scale of

pay and the petitioner's school being one amongst

them, the petitioner was extended with the Headmaster

scale of pay against one such post. It is also submitted

that subsequently, the petitioner's scale of pay was

revised in terms of ORSP Rules, 1998 and ORSP Rules,

2008. It is also submitted that in the meantime, the

gradation list of senior SES Headmaster of Government

(new) High School of the State was circulated by Opp.

Party No.2 under Annexure-9 and in the said list,

petitioner's name was indicated at Sl. No.1668 showing

the petitioner to have been appointed/joined in the

Senior SES Headmaster cadre w.e.f 10.11.1991. Mr.

Rath, learned Senior counsel submitted that pursuant

to the order passed by this Court under Annexure-8

when the petitioner was in receipt of the Headmaster's

scale of pay w.e.f 10.11.1991 and was also allowed the

revised scale of pay as provided under different ORSP

// 9 //

Rules, Hon'ble Apex Court in the case of Pabitra

Mohan Das & Others Vs. State of Orissa & Others

passed an order with regard to claim of Headmaster's

scale of pay. It is submitted that although the said

decision supports the claim of the present petitioner,

but basing on the said order, the petitioner was

reverted from the post of Headmaster vide order dated

15.7.2002 in terms of order dated 9.7.2002 passed by

Opp. Party No.2 under Annexure-12 and the petitioner

was posted as a Trained Graduate Teacher with the

corresponding scale of pay. It is submitted that

challenging such order of reversion dated 15.7.2002

under Annexure-12, the petitioner approached the

learned Tribunal in OA No.1787 (C) of 2002. It is sub

mitted that learned Tribunal vide a common order

passed on 29.8.2002 when held the original application

as not maintainable, the petitioner challenging the said

order approached this Court in W.P.(C) No.1511 of

2002. It is submitted that while the said writ petition

was pending before this Court, the State Govt. issued a

Resolution on 22.1.2003 resolving to rehabilitate all the

854 reverted Headmasters including the petitioner in

ex-cadre posts. It is submitted that the said order of

// 10 //

the Government was challenged by some aggrieved

Trained Graduate Teachers. This Court observed that

if any one is aggrieved by such order, they may

approach the learned Tribunal. It is submitted that

pursuant to the decision taken on 22.1.2003 the State

Government vide order dtd. 31.5.2003 under

Annexure-13 revoked the order of reversion and

reinstated all the 854 reverted Headmasters with all

benefit. But pursuant to the observation made by this

Court some of the reverted Headmasters filed Original

Applications before the learned Tribunal challenging

the resolution dated 22.1.2003 and the order dated

31.5.2003 under Annexure-13. It is sub mitted that in

one such case filed in O.A. No.232 of 2007, the

petitioner was arrayed as Opp. Party No.7. It is

submitted that learned Tribunal vide order dated

25.1.2007 disposed of the said O.A by quashing the

resolution of the State Government dated 22.1.2003

and the order dated 31.5.2003 under Annexure-13. It

is submitted that the said order of the learned Tribunal

was challenged by the petitioner before this Court in

W.P.(C ) No.2441 of 2007. It is submitted that in the

said Writ Petition, the petitioner took a specific stand

// 11 //

that his case is separate to the case of others and

while admitting the same learned Tribunal has

arbitrarily allowed the O.A. But it is submitted that this

Court without proper appreciation of the petitioner's

stand, dismissed all the said writ petitions vide a

common judgment passed on 15.5.2012. Mr. Rath,

learned Senior Counsel submitted that challenging

such order of this Court passed on 15.5.2012, the

petitioner approached the Hon'ble Apex Court in

SLP(Civil) No.30117 of 2012. The said SLP was

subsequently registered as Civil Appeal No.132 of 2017.

It is submitted that Hon'ble Apex Court in its order

dated 5.1.2017, directed the Opp. Party No.1 to

examine the case of the petitioner within three months

and with observation that the impugned order will not

debar the authority from taking a decision afresh

independently. Mr. Rath, learned Senior Counsel for

the petitioner submitted that the order passed by the

Hon'ble Apex Court was duly submitted before Opp.

Party No.1 on 30.1.2017 under Annexure-25. It is

submitted that Opp. Party No.1 without giving

reasonable opportunity of hearing to the petitioner and

without considering the documents in its proper

// 12 //

perspective, passed an order on 26.4.2017 under

Annexur-26 by holding that the petitioner is not

entitled to get the headmaster scale of pay. Mr. Rath,

learned counsel for the petitioner in support of his

stand taken in the writ petition submitted that the

decision of the Hon'ble Apex Court in Pabitra Mohan

Dash's case though supports the claim of the petitioner

but Opp. Party No.1 by misinterpreting the said order

passed the impugned order dated 10.5.2017 under

Annexure-27. Mr. Rath accordingly prayed for

interference of this Court in the said order.

5. Mr. Biplab Mohanty, learned Standing

Counsel on the other hand made his submission basing

on the stand taken in the counter affidavit. It is

submitted that the case of the petitioner squarely falls

as per the decision of the Hon'ble Apex Court rendered

in the case of Pabitra Mohan Dash and since the

petitioner does not fulfill the required seven years of

teaching experience as a Trained Graduate Teacher after

obtaining training qualification, he is not eligible and

entitled to get the headmaster scale of pay and opp.

Party No.1 has rightly rejected his claim. Mr. Mohanty

learned Standing Counsel also brought to the notice of

// 13 //

this Court Regulation 17(2)(1) of the Board of Secondary

Education and Rule 8(2) (b) of the Orissa Education

(Recruitment and conditions of service of Teachers etc.)

Rules, 1974. Mr. Mohanty submitted that since the

petitioner does not possess the required experience in

terms of the aforesaid Regulation of the Board and Rule

8(2)(b) of 1974 Rules, the claim of the petitioner has

been rightly rejected and no interference is called for.

6. A rejoinder affidavit has been filed by the

petitioner and Mr. Rath, learned Senior Counsel for the

petitioner basing on the stand taken in the rejoinder

affidavit submitted that since the petitioner's claim to

get the Headmaster's scale of pay has attained finality in

terms of the order passed by this Court on 17.11.1994

in OJC No.7188 of 1993 under Annexure-8, any

subsequent action taken by the Government is not

maintainable. It is submitted that the order of this

Court passed under Annexure-8 since was never

challenged by the State-Opp., parties, the said order is

binding on all concerned. It is submitted that in view to

the said order passed by this Court under Annexure-8,

the extension of the headmaster's scale of pay in favour

of the petitioner w.e.f 10.11.1991 vide Annexure-6 was

// 14 //

affirmed by this Court. Therefore, it is submitted that in

view of such order passed by this Court, the petitioner's

eligibility to get the Headmaster's scale of pay was not

amenable to any further challenge. It is submitted that

since the petitioner by the time he was initially

appointed on 10.11.1984 was having the Trained

Graduate qualification, the petitioner by the time he was

allowed the headmaster's scale of pay w.e.f 10.11.1991,

he had the requisites 7 years of teaching experience as a

Trained Graduate Teacher. Mr. Rath, learned Senior

Counsel further submitted that the ratio decided by the

Hon'ble Apex Court in the case of Pabitra Mohan Dash

also supports the claim of the petitioner as the petitioner

had the required 7 years of teaching experience as a

Trained Graduate Teacher, when he was allowed the

Headmaster Scale of Pay w.e.f 10.11.1991. Mr. Rath,

learned Senior Counsel accordingly prayed that Opp.

party No.1 without following the order passed by this

Court under Annexure-8 has passed the impugned

order by holding the petitioner as not entitled to get the

Headmaster's scale of pay vide the impugned order

under Annexure-27.

// 15 //

7. Heard learned counsel for the parties at length.

Perused the materials available on record.

8. This Court after going through the same finds that

by the time the petitioner was initially appointed as a

Headmaster on 10.11.1984 in an unaided school, the

petitioner was having the required qualification of

Trained Graduate. Therefore, the petitioner was rightly

allowed the headmaster scale of pay w.e.f 10.11.1991

i.e. on completion of seven years of teaching experience

vide order under Annexure-6. The said sanction of

Headmaster scale of pay in favour of the petitioner w.e.f

10.11.1991 was affirmed by this Court in its order dated

17.11.1994 under Annexure-8. In the said order, this

Court clearly held that petitioner had acquired 7 years

of teaching experience which is necessary for being

appointed as Headmaster in 1991. Since the petitioner

had got the required 7years of teaching experience by

the time he was allowed the Headmaster's scale of pay

w.e.f 10.11.1991, ratio decided in the case of Pabitra

Mohan Dash by the Hon'ble Apex Court supports the

claim of the petitioner. But, Opp. party No.1 in the

impugned order under Annexure-27 has rejected the

petitioner's claim to get the benefit of the Headmaster's

// 16 //

scale of pay w.e.f 10.11.1991 by misinterpreting the

decision rendered in the case of Pabitra Mohan Dash.

9. Therefore, this Court deems it fit and proper to

quash the impugned order dated 10.5.2017 passed by

Opp. party No.1 under Annexure-27. While quashing

the same, this Court directs the opp. parties to sanction

and disburse all service and financial benefit as due and

admissible in favour of the petitioner w.e.f. 10.11.1991

till his superannuation. This Court further directs the

opp. parties to revise the pension and pensionary

benefits and release the said benefit also in favour of the

petitioner. This Court directs the opp. parties to

complete the entire exercise within a period of four

months from the date of receipt of the said order.

10. With the aforesaid observation and direction,

the Writ Petition is disposed of.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 17th of August, 2022/sangita