Orissa High Court

Afr vs State Of Odisha And Others on 5 September, 2022

                    ORISSA HIGH COURT: CUTTACK


                       WPC (OAC) NO. 1047 OF 2016


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

AFR Tirtha Basini Mishra ..... Petitioner

-Versus-

State of Odisha and others ..... Opp. Parties

For Petitioner : Mr. J.K. Rath, Senior Advocate along with M/s. D.N. Rath and P.K. Rout, Advocates.

For Opp. Parties : Mr. S.K. Jena, Standing Counsel for School & Mass Education Department.

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing & judgment : 05.09.2022

DR. B.R. SARANGI, J. The Petitioner, who was appointed as a

Hindi Teacher through due process of selection by the

State Selection Board, has filed this writ petition seeking

direction to Opposite Party No.5-Comptroller of Accounts

to sanction the pension and all retiral dues of the

Petitioner and release the same without any further delay.

The Petitioner further seeks direction to the Opposite

Parties to calculate her legitimate dues with interest @ 18

% per annum and pay the same to her within a stipulated

time.

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

the Petitioner, having been selected by the State Selection

Board, constituted as per Rule-5 of the Orissa Education

(Recruitment and Conditions of Service of Teachers and

Members of the Staff of Aided Educational Institutions)

Rules, 1974 (hereinafter to be referred as "Recruitment

Rules, 1974"), was posted as a Hindi Teacher and

accordingly joined the said post in Korikol M.E. School,

an Aided Educational Institution, on 31.10.1980. She was

receiving her salary in the scale of pay of Rs.320-500/-

from the State Government in accordance with Rule-9 of

the Recruitment Rules, 1974. The Petitioner acquired her

training qualification on 31.10.1984 and accordingly she

was paid the scale of pay of Rs.400-750/- as a Trained

Kovida Hindi Teacher. She was continuing in the grade

and post of Hindi Teacher throughout. The school in

question, where the Petitioner was continuing as Hindi

Teacher, was taken over by the State Government on

01.04.1991. Consequentially, the Petitioner became a

Government Servant with effect from that date.

2.1 As per the provisions of Orissa Revised Scale of

Pay Rules, 1998 (for short "ORSP Rules, 1998")

introduced by the State Government, which was given

effect to w.e.f. 01.01.1996, the pay of the Petitioner was

fixed in the scale of pay of Rs.4750-125-7500 at

Rs.4875/- w.e.f. 01.01.1996. The ORSP Rules, 1998,

prescribed Time Bound Advancement (TBA) scale of pay

benefit to the employees, who have completed 15 years of

continuous service, from the date of appointment in one

post and the grade. Since the Petitioner had completed 15

years of continuous service w.e.f. her initial date of

appointment, i.e., 31.10.1980 on the date, the ORSP

Rules, 1998 came into force, i.e., 01.01.1996, the

Petitioner was extended with TBA scale of pay on

01.01.1996 and accordingly the pay of the Petitioner was

fixed at Rs.5150/-. When the Petitioner was enjoying

such scale of pay, the State Government, taking into

consideration its resolution passed on 11.11.2002, in an

erroneous manner decided to extend such benefit w.e.f.

01.11.2002 or thereafter instead of 01.01.1996 for taken-

over employees and directed to recover the TBA scale of

pay received by such employees w.e.f. 01.01.1996.

Aggrieved by such decision of the Government, the

Petitioner filed an Original Application before the State

Administrative Tribunal, Cuttack Bench, Cuttack bearing

O.A. No. 3229(C) of 2002 seeking to quash the resolution

dated 11.11.2002 of the State Government in Finance

Department and to allow the TBA scale of pay, which she

was receiving with effect from 01.01.1996, and not to

recover the TBA amount which has already been paid to

her. Not only the Petitioner herself, but also similarly

situated persons also approached the Tribunal with the

self same relief in O.A. No. 2301 of 2002 (Manorama

Setty and others v. State of Orissa and others) and

199 other Original Applications. The Tribunal heard all

the Original Applications analogously and a common

order was passed on 21.09.2005, whereby the Tribunal

held that the resolution dated 11.11.2002 is bad in law

and accordingly quashed the same, and directed that the

grant of TBA scale of pay to such employees are within

the scheme and, therefore, the question of refund of the

said amount does not arise. Accordingly, the Petitioner

was allowed to draw the TBA scale of pay as she was

receiving without the same being withdrawn from her.

The Petitioner was also extended with the incremental

dues as provided in the time scale of pay from time to

time.

2.2 The Petitioner was transferred and posted as

Hindi Teacher in the Government Girls High School,

Athagarh, where she continued to discharge her duty as

such, till she was superannuated from her service on

31.07.2010. On being superannuated from service, she

submitted her pension paper before the Inspector of

Schools, Cuttack Circle, Cuttack-Opposite Party No. 4, as

it was then, for release of her retiral dues, such as

pension, gratuity and unutilized leave salary etc. The

same was transmitted by Opposite Party No. 4 to

Opposite Party No.5 recommending the case of the

Petitioner for release of her retiral dues taking into

consideration the last pay drawn by the Petitioner.

2.3 The Comptroller of Accounts-Opposite Party

No. 5 wrote to the Inspector of Schools, Cuttack-Opposite

Party No. 4 with intimation to the Petitioner objecting that

since the Petitioner was allowed higher scale of pay of

Rs.400 to 750/- w.e.f. 31.10.1984 on acquiring higher

qualification, i.e., Hindi Training and she drew TBA scale

of pay at Rs.5,150/- on completion of 15 years of service

on 01.01.1996, instead of 31.10.1999, therefore, the

same was wrong and directed for correction of the Service

Book of the Petitioner accordingly and to recover the

excess amount drawn by her from 01.01.1996 till she was

made to retire, from her DCRG and thereafter to submit

the Revised L.P.C. for approval. Accordingly, the Service

Book and Pension Papers of the Petitioner were returned

by the Comptroller of Accounts to the Inspector of

Schools, Cuttack. In response to the same, the Petitioner

made a representation on 24.01.2014 to the Opposite

Party No. 5 by explaining the quarry made by him to

Opposite Party No. 4 and requested him to release her

pension. Comptroller of Accounts communicated to the

Petitioner on 19.02.2014 that necessary clarification

regarding sanction of TBA on Post/Grade or Scale has

been sought from the Government in Finance

Department, which is still awaited, and that on receipt of

the clarification from the Government, her case shall be

considered /disposed of accordingly.

2.4 The Comptroller of Accounts wrote a letter to

Opposite Party No. 4 on 12.05.2014 asking him to pursue

the matter with the Government and re-submit the

pension proposal of the Petitioner after receipt of the

clarification from the Government. The Petitioner

requested to the Comptroller of Accounts on 09.09.2015

stating inter-alia that since the Court of law has decided

the issue and settled the matter relating to TBA payment

of aided and taken-over employees, therefore, he should

release the retiral dues as the Petitioner by that time had

already crossed 6 years after retirement, referring his

letter dated 19.02.2014 and 20 months time already gone

after seeking clarification by Opposite Party No. 5 in the

matter. Therefore, the Petitioner requested for sanction of

pension without any further delay. Along with his letter, a

copy of the judgment of the High Court was also annexed

for ready reference of Opposite Party No. 5.

2.5 The Petitioner since was not extended with the

appropriate retiral benefits, in spite of the law having

being settled by the Tribunal, she again made a detailed

representation on 12.11.2015 to Opposite Party No. 5

bringing to his notice that Opposite Party No.5 is

unnecessarily harassing her although law has been

established by the Tribunal in the case of Manorama

Setty (supra) and batch of Original Applications,

including the case of the Petitioner bearing O.A.

No.3220(C) of 2002, as well as the law has been settled by

the Hon'ble High Court of Orissa in OJC No. 115 of 1992

decided on 05.05.1994, OJC No. 1006 of 1995 decided on

05.02.1997 and OJC No. 17 of 1999 decided on

06.12.1999, that 15 years is to be counted from the date

of appointment for the purpose of granting the benefit of

advancement of scale of pay. The same principle has also

been adopted in the case of Jyotsna Mayee Behera v.

State of Orissa, 2000 (II) OLR 544 that on acquiring

higher educational qualification by the employee

continuing in the said post and grade and thereby

earning higher scale of pay would not change the status

of the employee and 15 years of continuous service to be

calculated from the date of the initial appointment for the

purpose of calculation of Time Bound Advancement Scale

of Pay. In spite of such communication being made,

Opposite Party No.5 did not extend the retiral benefits as

due and admissible to the Petitioner. Hence, this writ

petition.

3. Mr. J.K. Rath, learned Senior Advocating

appearing along with Mr. D.N. Rath, learned counsel for

the Petitioner contended that once TBA scale of pay has

been extended to the Petitioner, the same cannot be

withdrawn or asked to be refunded, as the Petitioner is

entitled to get such scale of pay with effect from the date

she completed 15 years of service. It is further contended

that the Petitioner joined in service on 31.10.1980.

Therefore, taking into consideration 15 years of service,

she has been extended with TBA scale of pay with effect

from 01.01.1996 as per the ORSP Rules, 1998. Therefore,

no illegality or irregularity had been committed by the

authorities by extending such benefit and, as such,

Opposite Party No.5 in order to cause harassment to the

Petitioner has not released the retiral benefits, though she

has been granted the provisional pension. Till now, the

final pension and other retiral dues, as due and

admissible to the Petitioner, have not been paid.

Consequentially, the Petitioner is also entitled to get

interest for the delayed payment of benefit due to the

callous attitude of Opposite Party No.5 in spite of the fact

that it has been brought to his notice that similar matter

has been considered by this Court and the issue has been

set at rest with regard to the eligibility criteria for grant of

TBA scale of pay admissible to an employee. Applying the

same, if the benefit had been extended to the Petitioner,

which was of course in accordance with law, there would

not have been any impediment on the part of Opposite

Party No.5 to release the final pension and other retiral

benefits to the Petitioner. To substantiate his contention,

learned Senior Counsel appearing for the Petitioner has

relied upon the judgments of this Court in the case of

Jyostna Mayee Behera v. State of Orissa and others,

2000 (II) OLR 544 and Balabhadra Sarangi v. State of

Orissa and others, 2003 (I) OLR 24.

4. Mr. S. Jena, learned Standing Counsel

appearing for the School & Mass Education Department,

referring to the counter affidavit filed by Opposite Party

No.4, vehemently objected to the claim made by the

Petitioner and contended that the Petitioner was

appointed as a Hindi Teacher in Karikol M.E School

under control of the then D.I of Schools, Athagarh, in the

District of Cuttack, and she joined against the post on

31.10.1980. The said Korikol M.E. School was an Un-

aided Non-Govt. M.E School, which was taken over by the

State Govt. w.e.f 01.04.1991. Consequent upon taken

over of the M.E. School, the petitioner enjoyed the status

of a Government employee and she is to abide by the

rules and regulations framed by the Government from

time to time. It is further contended that after

introduction of ORSP Rules, 1989 (effecting from

01.05.1989), the TBA benefit which was extended under

ORSP Rules, 1985 was ceased and put to an end from

02.10.1989. As by that time the Petitioner had not

completed her 15 years of service or in between the cutoff

date, i.e., 02.10.1989, she was not entitled for the said

benefit. The State Government, while granting the TBA

benefit to taken over employees under ORSP Rules, 1998,

was extended the said benefit from 01.11.2002 instead of

01.01.1996 or thereafter. This was a common order for all

concerned and not for the Petitioner only. Accordingly,

the pay of the Petitioner in the TBA scale was shifted to

01.11.2002, but later on the said order was modified and

the TBA benefit was extended from the date of eligibility of

completion of 15 years of service against the post/grade

w.e.f. 01.01.1996 and later. It is also contended that the

Petitioner entered into the service on 31.10.1980 and

later on she was allowed the higher scale / grade on

acquisition of B.A. Kovida qualification on 31.10.1984,

wherefrom her grade was changed and the TBA benefit

was to be counted from that date. Accordingly, she was

eligible to get the TBA benefit from 31.10.1999 instead of

01.01.1996. This error, which has been committed, has

been rectified and, thereby, no illegality or irregularity has

been committed by Opposite Party No.5, while directing

Opposite Party No.4 to get clarification from the

Government, so as to warrant interference of this Court at

this stage.

5. This Court heard Mr. J.K. Rath, learned Senior

Counsel appearing along with Mr. D.N. Rath, learned

Counsel for the Petitioner and Mr. S. Jena, learned

Standing Counsel for School & Mass Education

Department appearing for the State Opposite Parties by

hybrid mode, and perused the records. Pleadings having

been exchanged between the parties, with the consent of

learned Counsel for the parties this writ petition is being

disposed of finally at the stage of admission.

6. Both the counsel unequivocally state that the

Petitioner joined in service on 31.10.1980 and thereafter

she acquired the training qualification on 31.10.1984.

But taking into consideration the initial date of

appointment, i.e. 31.10.1980, she has been extended with

the TBA Scale of Pay with effect from 01.01.1996. As

such, she continued with the said benefit till her

superannuation. But after submission of the pension

papers, the same was returned seeking for submission of

the pension papers afresh by revising the date of benefit

of TBA, which was extended to the Petitioner with effect

from 01.01.1996. It is not in dispute that the Petitioner

was continuing in an aided educational institution, which

was ultimately taken-over and she became a Government

employee. The date of such benefit was sought to be

clarified, in view of the Finance Department Resolution

dated 11.11.2002. But, as a matter of fact, such

Resolution issued by the Finance Department has already

been quashed by the Tribunal in the Original Application

filed by one Manorama Setty and other batch of Original

Applications, as mentioned supra. Therefore, the

entitlement of the Petitioner of the TBA scale of pay on

completion of 15 years of service from the date of initial

appointment has to be calculated and paid to her and in

fact the same was extended to her, which has been

sought to be recovered by interference of Opposite Party

No.5 due to wrong interpretation of provisions of law.

Even though it was brought to his notice that similar

matter has been considered by the Tribunal and

confirmed by this Court and the issue with regard to

grant of TBA scale of pay admissible has been set at rest,

but the reasons best known to Opposite Party No.5 why

he has not adhered to the order passed by the Tribunal

and confirmed by this Court.

7. There is also no dispute that TBA scale of pay

is admissible to the teachers, who have completed 15

years of service in the same "post" or "grade" prior to

01.01.1985 and are eligible to such benefit under ORSP

Rules, 1998. The pay means wages or salary for services

rendered. Pay includes dearness pay, special pay and

personal pay, but does not include the special pay

granted in view of the personal qualification of the

employee or sanctioned for the post held by the employee

or granted in view of the position of the employee in the

cadre. The reference to scale of pay in the service rules

shall be construed as reference to the revised scale of pay

specified in the latest Revision of Pay and Allowance

Rules and the pay shall be construed accordingly. All

officials working in the same scale of pay in a department,

although holding posts with different designations, shall

be deemed to be holding posts in the same grade.

8. In Bombay Dyeing and Manufacturing Co. v.

State of Bombay, AIR 1958 SC 328, the apex Court held

that a Government employee is entitled to draw the pay

while he is on duty. The duty includes the departmental

examination or any other optional examination or training

of the Government employees, provided they are permitted

to do so by the authority concerned. When an employee

has done his work, the amount of wages earned by him

becomes a debt due to him from the employer and is

property, which can be assigned under law. If the pay has

accrued, the right to receive it becomes a Fundamental

Right.

9. In State of Maharastra v. Bhaishankar

Aualram Joshi, AIR 1969 SC 1302, the apex Court held

that once pay is fixed, the liability to pay it arises out of

contract.

10. It is worthwhile to mention here that an

ordinary increment is earned as a matter of course even

during disciplinary proceedings unless withheld. The

conditions for counting service for increment in the time

scale of pay have been laid down in various provisions of

the service rules. The increments on promotion must be

given as per mandate of the service rules applicable to the

employees. The time bound advancement scale of pay is

granted to an employee because of stagnation he faced for

future promotion and accordingly under the service rules,

if a person continues in a "post" or "grade" for a period of

15 years without getting any promotion, he/she is entitled

to get the time bound advancement scale of pay on

completion of 15 years of service in one "post" with the

same scale of pay.

11. Similar question had come up for

consideration before this Court in Balabhadra Sarangi

(supra). In the said case, the Petitioner was working as a

Classical Teacher in an aided educational institution and

was denied the benefit of time bound advancement scale

of pay. This Court, by holding that 15 years of service has

to be counted from the date of appointment for the

purpose of granting advancement scale of pay because the

benefit if intended to be given irrespective of other benefit

that could have been granted on acquiring higher

educational qualification and an employee who has held

the same "post" or "grade" for 15 years is to be considered

for the advancement scale of pay, directed the authorities

for payment of advancement scale of pay on completion 15

years of service. As such, for extension of such benefit,

this Court, placing reliance on the judgments of this Court

in Bata Krishna Sahu v. State of Orissa (OJC No.115

of 1992 disposed of on 05.05.1994), Sanatan Barik v.

State of Orissa (OJC No. 124 of 1992 disposed of on

02.05.1995), Karunakar Biswal v. State of Orissa, 82

(1996) CLT 666 and Jyostna Mayee Behera v. State of

Orissa, 2000 (II) OLR 544, in paragraph-4 of the

judgment in Balabhadra Sarangi, mentioned supra held

as follows:-

"4. The point involved in this writ petition is no more res integra. The first decision of this Court on this point is that of Bata Krishna Sahu v. State of Orissa (OJC No.115 of 1992 disposed of on 05.05.1994), Chief Justice Nanavati speaking for the Bench held:-

"There is nothing on record to show that as a result of the Petitioner acquiring

higher qualification, namely, the degree of B.A. the became entitled to a higher grade or that his post was regarded as a higher post. It is, therefore, difficult to appreciate how the period of 15 years is to be counted not from the date of appointment as a Hindi teacher but from the date he was given some benefit as a result of his passing B.A. examination. The Petitioner having completed 15 years of service in the same grade or post prior to, 1.1,1985, he became entitled to the benefit of advancement pay scale."

The aforesaid ratio was subsequently followed in Sanatan Barik v. State of Orissa (OJC No. 124 of 1992 disposed of on 2.5.1995), Karunakar Biswal v. State of Orissa, 82 (1996) CLT 666 as well as in Jyostna Mayee Behera v. State of Orissa, 2000 (II) OLR 544. It has been consistently held in all the cases that 15 years of service has to be counted from the date of appointment for the purpose of granting advancement scale of pay because the benefit is intended to be given irrespective of other benefit that could have been granted on acquiring higher educational qualification. Emphasis had been laid on the words 'grade or post' and not on scale of pay which an employee had been drawing. The scale of pay may undergo changes during the tenure of service of an employee following revision of pay scale from time to time or on the employee's acquiring higher academic qualification. As per the Finance Department office memorandum, referred to above, an employee who has held the same post or grade for 15 years is to be considered for the advancement scale of pay.

12. Taking into consideration the principles of law,

as discussed above, and applying the same to the present

context, this Court is of the considered view that though

the Petitioner had joined as Hindi Teacher on 31.10.1980

and subsequently she acquired training qualification on

31.10.1984 and was allowed trained Hindi Teacher scale

of pay of Rs.400-750/-, that itself cannot disentitle her to

get the TBA scale of pay for continuous holding the "post"

or "grade" for 15 years. Thus, drawal of higher scale of

pay on account of acquisition of training qualification by

the Petitioner being immaterial, she is eligible to enjoy the

benefit of TBA scale of pay for completion of 15 years of