State Of Odisha And Ors vs Sampadarani Acharya
2022 Latest Caselaw 4636 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                     RVWPET (RPC) No.25 of 2019


        State of Odisha and Ors.              ....           Petitioners
                                              Mr. D.R. Mohapatra, SC
                                                  (for S & ME Deptt.)

                                   -versus-

        Sampadarani Acharya                  ....      Opposite Party
                                      Mr. Laxmikanta Mohanty, Adv.



                  CORAM:
                  DR. JUSTICE S.K. PANIGRAHI
                                   ORDER

13.09.2022 (RVWPET (RPC) Nos.25, 1, 2, 3, 5, 7, 8, 9, 10, 12, 13, 14, 17, Order 19, 23, 28 and 29 of 2019 with CONTC (CPC) Nos.268 of No. 2016, 308 of 2016, 309 of 2016 and 313 of 2016)

05. 1. All these matters are taken up through hybrid mode.

2. All the aforesaid RVWPETs(RPC) have been filed at the

instance of the State to review the common order dated

28.09.2015 passed in O.A. 3682(C) of 2011 and batch of

cases by the Odisha Administrative Tribunal, Cuttack

Bench, Cuttack (hereinafter referred to as "the Tribunal"

for brevity) in the light of order dated 12.12.2018 passed

by this Court in W.P.(C) No.23239 of 2017 and batch of

cases.

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3. Grievance of the Petitioners/ State is that the Tribunal

heard the matter in the absence of their counter. Though

the said fact was brought to the notice of the learned

Tribunal, but it did not incline to grant further time and

heard the matter and disposed of the said Original

Applications (hereinafter referred to as "the O.As. for

brevity) in the following manner. The operative part of

the order of the learned Tribunal is quoted as follows:

"3. We have heard the counsel for both the sides and have also gone through the averments of the original application (O.A.) and so also the order of the Division Bench of this Tribunal passed in OA No.2025/1996 and 3514(C)/1999.

4. It is not at all disputed that these applicants were serving as Resource Teacher for imparting integrated education to disabled children under a scheme and after the abolition of the scheme they were deployed in different primary schools and were inducted into General Teacher cadre. For such redeployment and induction to General Teacher cadre, the Director of Elementary Education, Orissa, Bhubaneswar vide office order No.14857, dtd.06.11.1995 (Annexure-4) had fixed the service condition in which the Resource Teacher having B.Ed./C.T. qualification were allowed to draw the minimum in the pay scale of Rs.1080-1800/- per month along with D.A. as admissible under the Rules whereas Non-Trained Teachers were given scale of pay of Rs.950-1500/-. The Division Bench of the Tribunal in O.A. No.2025/1996 had passed the order as follows:

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"However, the last pay he was getting as Resource Teacher may be protected in the scale of Rs.950- 1500/- taking recourse to Rule 74(d) of the Orissa Service Code provided his last pay was not higher than Rs. 1500/- which is the maximum in that scale and in that case, he shall be entitled to get only Rs. 1500/-.

Orders in this regard be passed within three months from the date of receipt of a copy of this order."

In this case the applicant Rama Krushna Purohit was an Un-Trained Teacher. It is stated That this order has already been complied with by the State Govt. vide order dtd.28.08.2001 in O.A.Nos.3514(C)/99, 3515(C)/99, 1817(C)/1999 and 17(C)/2001 following the ratio of O.A.No.2025/1996, similar order was passed giving pay protection of the last pay drawn as Resource Teacher while switching over to the General Teacher cadre. It is stated that the said order had been complied with by the State Govt. Thus, the present applicants, who stand in the same footing with the applicants of the above mentioned O.As. are also entitled for same pay protection. In other words, pay protection was granted on the condition that it was even the scale applicable for the posts in which the applicants' scale was adjusted. The Tribunal passed the aforesaid order taking into consideration the provisions of Rule-74(d) of Orissa Service Code. The order passed in the case of Mr.Purohit had not been challenged before any forum. Referring to the ratio one Ratnakar Das approached the Tribunal even without waiting for a counter.

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5. In view of the position stated above, all the O.As, are allowed. The last pay drawn by these applicants as Resource Teacher while inducted into General Teacher cadre be protected in their respective scale of pay i.e. in the scale of Trained Teacher and Untrained Teacher taking into consideration the qualification of the applicants and this exercise should be completed within a period of one month from the date of receipt of a copy of this order. It is further directed that service benefits, if any, given to the applicants of O.A.No.2025/1996 and O.A.No.3514/1999 be extended to the present applicants.

Accordingly, all the O.As. are disposed of"

4. Being aggrieved by the said order dated 28.09.2015

passed by the Tribunal, The State of Odisha filed W.P.(C)

No.23239 of 2017 and batch of cases before this Court.

This Court disposed of the said Writ Petitions vide order

dated 19.12.2018 by granting liberty to the State to file

Review Petition before the Tribunal. In such view of the

matter, the State has preferred these Review Petitions on

the grounds that:-

(i) The State was not given sufficient opportunity to

file counter affidavit which leads to disposal of the

O.As. being allowed. Despite the fact was brought

to the notice of the Tribunal, the same was not

given heed to.

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(ii) The present Opposite Parties/ Original Applicants

(hereinafter referred to as "the Original

Applicants" for brevity) who were initially

engaged as Resource Teachers for disabled

children unit under integrated education which is

a central sponsored scheme sans any service

condition.

(iii) It was also stipulated that soon after abolition of

the scheme, the engagement of the Resource

Teachers like the Original Applicants shall also be

abolished and they will have no claim for further

engagement or regularisation of their posts. The

service conditions of the Original Applicants were

that no Resource Teacher shall claim any regular

assignment and their services may be terminated

without giving any reason thereof. Accordingly,

after abolition of the said scheme, the services of

the Original Applicants were terminated. Hence,

no illegality is committed by the State. Further, the

Original Applicants cannot claim regularisation of

their services during the period of Resource

Teacher.

(iv) In the meantime, after the Resource Teachers were

disengaged by following the abolition of the

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scheme on 31.03.2009, the State took conscious

policy decision to give appointment to dis-

engaged Resource Teachers by bringing them to

general cadre. With the introduction of the said

policy, the Odisha Government was generous

enough to consider the plight of the Original

Applicants and thereby the Government

regularized them under a new service governed

under the new policy and service condition.

(v) Since the Original Applicants were engaged under

a scheme which was purely temporary in nature,

they cannot claim for their future service or

regularisation of their past services. Hence, the

past services of the Original Applicants cannot be

counted. Therefore the Original Applicants cannot

be considered under the Orissa Civil Services

(Pension) Rules, 1992. Hence, the claim of the

Original Applicants for grant of pension and

pensionary benefits under the old Rules is not

tenable.

(vi) Hon'ble Supreme Court has decided in several

cases and the law is well settled in the case of

State of Orissa -vrs.- Dipti Paul1 and in the case

Civil Appeal No.1499 of 1998

// 7 //

of State of Karnataka -vrs.- Umadevi2. The Orissa

Elementary Education (Method of Recruitment

and Condition of Service of Teachers and Officers)

Rules, 1997 postulates that the appointment of an

Elementary Teacher shall be started with effect

from Level-V to Level-I after entering into a cadre.

Hence, any service benefit claimed by the teacher

entered into the service shall be governed under

the Orissa Elementary Education (Method of

Recruitment and Condition of Service of Teachers

and Officers) Rules, 1997. In the present cases, the

Original Applicants were never governed under

the Orissa Elementary Education (Method of

Recruitment and Condition of Service of Teachers

and Officers) Rules, 1997 during the period of

serving as Resource Teacher which was purely

under a scheme. Hence, they cannot claim any

kind of regular benefit for the said period. The

Original Applicants in O.A. No.3682(C) of 2011,

entered into the cadre with effect from 28.08.2010

and his service period shall be reckoned from that

date. The Tribunal has wrongly held that the

Original Applicants were eligible to get regular

AIR 2006 SC 1806

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scale of pay as they were protected the scale of pay

while they were under the scheme. It is to be

borne in mind that the Original Applicants were

allowed to receive Rs.1500/- under the same

scheme and with the abolition of the scheme, the

said scale ceased to operate. Since the Original

Applicants were re-engaged on sympathetic

consideration and were brought to the Elementary

Cadre, their scale of pay is totally different from

that of the schematic scale of pay. In such view of

the matter, the claim of the Original Applicants for

pay protection and service surety cannot be

accepted.

5. In so far as the reliance of the Original Applicants on

the judgments of the Supreme Court in the case of N.

Ashalata Reddy -vrs.- Anshu Kathuria and Ors.3

wherein the Apex Court has held that the review

jurisdiction is extremely limited, unless there is mistake

apparent on the face of the record. In the present cases,

mistake is clearly visible as the stand of the Petitioners/

State has not been given due care.

6. It is also stated that some of the similarly placed

candidates have been allowed to receive the benefits as

2014(I) OLR (SC) 364

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prayed for by the present Original Applicants. If the said

fact is true, the present Original Applicants cannot be

deprived to take advantage because of certain wrong

orders passed by the Government. But this Court is oif

the believe that mistake should not be perpetuated.

7. Learned counsel for the Opposite Parties/Original

Applicants submitted that the scope of review in the

present cases is very limited, as the Petitioners/ State has

failed to show the mistake of fact apparent on the face of

the record. Non-filing of counter cannot be construed as a

matter of mistake of fact.

8. In a similar matter, this Court vide common judgment

dated 22.04.2022 passed in WPC (OAC) No.696 of 2018

and batch of cases directed the Opposite Parties, the

present review Petitioners/ State to extend the service

benefits to ex-Resource Teachers by counting the entire

period of service from the date of appointment as

Resource Teacher and to enroll their names under O.C.S.

Pension Rules, 1992. Hence, the present Original

Applicants cannot be discriminated.

9. He further submitted that reliance placed by the

Petitioners/ State on the case of Dipti Paul (supra) relates

to the case of Sikshya Karmees who were appointed with

consolidated pay of Rs.400/- per month, whereas the

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present Original Applicants were appointed as Resource

Teachers and were receiving the regular scale of pay as

Primary School Teachers.

10. It is also submitted that the Tribunal relied on Rule-

74(d) of the Orissa Service Code and had allowed the case

of the Original Applicants and directed to grant pay

protection to Resource Teachers as they were appointed

with the scale of pay of regular Primary School prior to

their termination from service. It is also submitted that

the Tribunal relied upon its earlier decisions in similar

matters which were confirmed by this Court and the

Supreme Court and passed the said order. The similarly

situated persons namely Sarojini Kar and Swarnalata

Beberta Pattnaik whose cases were confirmed by both

this Court and the Supreme Court have already been

granted all the service and financial benefits by counting

their entire period of service from the date of their initial

appointment as Resource Teachers.

11. He further submitted that if a similar benefit has been

given to an employee, such benefit should be extended to

all similarly placed employees without any

discrimination. To that effect, he placed reliance on the

// 11 //

decision of this Court in the case of Smrutirekha Mishra

-vrs.- State of Odisha and Ors.4

12. Heard learned counsel for the Parties.

13. The Original Applicants have since been the

employees under a scheme and receiving fixed

remuneration for the work they were performing, they

have been absorbed in different cadres. Hence, they are

born into cadre on different dates of the year 2010. Their

previous service cannot be included for the present

service. Further, the policy of the Government to absorb

them as benevolent employer which itself is a laudable

and hence, the said policy cannot be reviewed under

judicial review in view of the judgments of the Supreme

Court in the cases of Dr. Ashwani Kumar -vrs.- Union of

India and Anr.5, State of Karnataka -vrs.- Dr. Praveen

Bhai Togadia6, Oil and Natural Gas Corporation -vrs.-

Krishan Gopal & Ors.7 and State of Maharashtra -vrs.-

R.S. Bhonde8 wherein the Apex Court has held that

judicial review in policy issue is very limited. The prayer

of the Original Applicants in the aforesaid O.As. was

nothing but interfering with the Government policy issue

2022(I)ILR-CUT-219

(2020) 13 SCC 581,

(2004) 4 SCC 684

(2020) SCC Online SC 150

2005 (6) SCC 751

// 12 //

and it was not wise on the part of the learned Tribunal to

interfere with the policy issue of the Government.

14. This Court is also not inclined to interfere with the

policy issue of the Government. As per the law laid down

by the Apex Court as well as by this Court, the Original

Applicants are not entitled to get pay protection for the

period when they were engaged under the scheme.

15. Applying the law laid down by the Apex Court and

by this Court in the aforementioned decisions, direction

issued by the Tribunal vide common order dated

28.09.2015 passed in O.A. 3682(C) of 2011 and batch of

cases more particularly the directions that last pay drawn

by these applicants as Resource Teacher while inducted

into General Teacher cadre be protected in their

respective scale of pay i.e. in the scale of Trained Teacher

and Untrained Teacher taking into consideration the

qualification of the applicants and this exercise should be

completed within a period of one month from the date of

receipt of a copy of this order are unsustainable and

beyond the pale of judicial review. Accordingly, this

Court is of the view that the Original Applicants are not

entitled to the benefit of regularization of their past

service when they were working under the schematic

employment.

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16. For the reason stated above, all the above Review

Petitions are allowed. The common order dated

28.09.2015 passed in O.A. 3682(C) of 2011 and batch of

cases by the Tribunal is set aside. There shall be no order

as to costs.

17. Accordingly, all the above Review Petitions are

disposed of.

(Dr. S.K. Panigrahi) Judge

B.Jhankar