Afr Saroj Chandra Behera vs Hindustan Aeronautics Ltd.
2022 Latest Caselaw 4716 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                          W.P.(C) No. 26434 of 2013

       An application under Articles 226 & 227 of Constitution of
       India.
                                   ---------------
AFR    Saroj Chandra Behera                          ......   Petitioner

                              -Versus-

       Hindustan Aeronautics Ltd., Koraput
       & others                            .......            Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner       :   M/s. S. Mallik, P.C. Das,
                                  M.K. Acharya, Advocates

         For Opp. Parties:        Mr. A.R. Dash, S.K. Nand-1,
                                  B. Mohapatra, K.S. Sahu &
                                  L.D. Achari, Advocates
                                  [ for Hindustan Aeronautics Ltd. ]

                                Mr. P.K. Panda, Standing Counsel
                                For S & ME Department.
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

14th September, 2022

SASHIKANTA MISHRA, J.

A High School was established by Hindustan

Aeronautics Limited (HAL), a fully owned Government

company under the direct control of Government of India,

at Sunabeda in the district of Koraput in the year 1968.

The School was named Aeronautics DAV High School

(ADAV High School). The School had a Managing

Committee of its own and was affiliated to the Board of

Secondary Education, Odisha. The students of the School

were appearing in the HSC examination under the control

of the said Board. The School was being fully financed by

the HAL management till 1974. The Government of Odisha

granted full grant-in-aid towards salary cost of the

teaching and non-teaching staff of the School in 1974 and

as such, the School became an aided educational

institution within the meaning of Section 3(b) of the Odisha

Education Act. The scale of pay of the staff of the School

was equal to their counterparts in the Government High

Schools in terms of Rule 9 of the Odisha Education

(Recruitment and Conditions of Service of Teachers and

Members of the Staff of Aided Educational Institutions)

Rules, 1974. An Educational Society was constituted and

registered by the HAL management in the name and style

of Aeronautics Education Society to run and manage the

educational institutions established and managed by the

HAL management at Sunabeda with the General Manager

of Koraput Division as the Chairman of the Society. The

petitioner was initially appointed as a Trained Graduate

Teacher in the year 1980 and his appointment was

approved by the Inspector of Schools, Koraput by order

dated 13.05.1982 with effect from the date of his joining

i.e., 02.09.1980. The Secretary of HAL management in his

letter dated 03.04.1993 wrote to the Inspector of Schools

intimating that the Aeronautics Education Society would

fully finance the school from 1993-94 and that they would

not accept any aid from the Government of Odisha. On

06.05.1994, the Inspector of Schools, Koraput issued a

letter to the General Manager, HAL requesting him to

intimate as to whether the management is agreeable to

take over the school and fully finance it. In response, by

letter dated 22..08.1994, the General Manager intimated

the Inspector of Schools that the Aeronautics Education

Society is prepared to manage the ADAV High School and

to finance the School fully. Accordingly on 05.05.1995, the

Government of Odisha in School and Mass Education

Department intimated the HAL authorities that

Government has no objection to the management of the

school being taken over by the authorities of HAL subject

to the condition that HAL will not claim grant-in-aid from

the State Government. On such terms and conditions the

management of the School was taken over by the HAL

authorities from the year 1993-94. It is stated that the HAL

management did not honor its commitment made to the

Government by not extending the benefit of revision of

scales of pay and other benefits which the staff would have

got from the State Government had they been continuing

as employees of a taken-over school. Further, the age of

retirement of the teaching and non-teaching staff of aided

educational institutions in Odisha was 60 years and so

was the age of retirement of the employees of HAL. The

Government of India also made the retirement age of its

employees at 60 years. However, the opposite party

authorities continued to superannuate the teaching and

non-teaching staff of the school on completion of 58 years

of age. The date of birth of the petitioner being 05.01.1956,

he was entitled to continue till the end of January 2016

but the opposite party authorities took steps to retire him

on superannuation with effect from 31.01.2014 at the age

of 58 years. It is further stated that even though the post of

Head Master was lying vacant since long and the petitioner

was the senior most teacher, he is functioning as In-

Charge Headmaster with the designation as Asst.

Headmaster only by allowing him revision of Grade Pay

from Rs.4200/- to Rs.4600/- and Conveyance Allowance of

Rs.400/- per month. Such Grade Pay was also not paid to

him. Further, the Revised Scale of Pay Rules, 1998 came

into force with effect from 01.01.1996 revising the scale of

pay of the Government employees from the said date. As

per the provisions of the said Rules, employees were

allowed Time Bound Advancement (TBA) scale of pay on

completion of 15 years of service in the same post. Even

though the petitioner completed 15 years of service in 1995

benefits of Revised Scale of Pay Rules, though made

applicable HAL employees, were denied to the petitioner

and other staff of the school. The revision of scale of pay

pursuant to the Revised Scale of Pay Rules, 2008 was also

made applicable to the school from August, 2009 and as

such, the petitioner is entitled to such revision with effect

from 01.01.2006. The same was not paid to the petitioner.

The petitioner submitted several representations to the

authorities but the same evoked no response. As such, the

petitioner was constrained to approach this Court in the

present writ application seeking the following relief:

"Under the aforesaid facts and circumstance the petitioner humbly prays that this Hon'ble Court may graciously be pleased to,

1. Direct/Order that the Petitioner shall be allowed the revised scale of pay w.e.f. 1.1.1996 and 1.1.2006 and the other financial and service benefits accrued to him consequent upon such revision with a concurrent direction to pay the differential arrear salary within a stipulated period.

2. Direct/Order that the petitioner shall be allowed to continue till completion of 60 years of age which is the age of retirement of the employees of the aided educational institution and also the employees of HAL.

3. Direct/Order that the petitioner shall be allowed the D.A. at the same rate as has been allowed to the State Government, Central Government and HAL employee.

4. Pass such other orders as may be deemed fit and proper in the interest of justice.

And for this act of kindness the petitioner as in duty bound shall ever pray."

2. The Opposite Party No.1, (HAL management)

has filed a counter. It is basically contended that the

School in question was taken over by the Aeronautics

Education Society, which is a Society registered under the

Societies Registration Act having its own bye-laws which

inter alia, include the service conditions of employees like

the petitioner. Such service conditions of the employees do

not include or attract any of the service conditions

governing the employees of HAL and such service

conditions of the Society are comprehensive and

wholesome in itself. It is further stated that the issues

raised in the writ petition are directed against the Society

and not the management of HAL. It is however clarified

that the age of superannuation of teachers in the State

High Schools is 58 years and not 60 years.

3. Counter affidavit has been filed also by

Opposite Party Nos. 2 and 3. While the basic facts relating

to establishment of the School, coming under the grant-in-

aid fold and its subsequent takeover by the Aeronautics

Education Society have not been disputed, the claim of the

petitioner as laid in the writ petition is seriously disputed.

It is stated that with effect from 1995, ADAV High School is

functioning as a private High School being administered by

the Society which is an independent registered society

having its own bye-laws managed by its managing

committee and generating its own funds. It is stated that

the petitioner is not entitled to any claim for salary benefits

etc. at par with the State Government or Central

Government/HAL employees especially when no such term

was included either in his appointment letter or in the

undertaking given by AES to the State Government during

takeover of the School. It is further stated that apart from

the monetary benefits, AES also provides several non-

monetary benefits as per its policies which are not

available under the State Government such as, residential

quarters, water/electricity at subsidized rates, free medical

treatment at HAL hospital, unlimited reimbursement of

medical expenses and LTC etc. It is also stated that GPF

having been stopped with effect from 2004 and

contributory PF at the rate of 10% by the State

Government for its employees but, being covered under the

EPF Act, 1952, the AES pays contributory PF at the rate of

12%. Further, leave encashment, which is not available

under the state Government, is applicable to AES

employees at the rate of 15 days of leave per year. That

apart, certain allowance like conveyance allowance,

officiating allowance etc. not available to the State

Government employees are paid by AES to its employees. It

is stated that the petitioner has accepted and availed all

these benefits over the years without any demur and

hence, is estopped to claim the relief laid in the writ

petition. On such background facts a paragraph-wise reply

is offered to the writ petition denying and disputing each of

the averments thereof. As regards revision of pay as per the

Revised Scale of Pay Rules, 1998 and 2008, it is stated that

the same are not applicable to the petitioner since he is an

employee in a private High School administered by the

AES. The petitioner cannot seek parity with employees of

Government and aided Schools. In any case in the interest

of the employees, AES has revised the scale of pay of its

employees with effect from August, 2009. The Society has

also granted payment of TBA benefits to the teaching staff

of the Society vide Circular dated 23.4.2007. As regards

the date of retirement, it is reiterated that the age of

retirement under the Government of Odisha is also 58

years and the appointment letter as well as terms and

conditions of appointment of employees under the AES also

stipulate the retirement age as 58 years. Moreover a

meeting was held on 17.07.2012 between the AES

management and the representatives of teachers to resolve

certain disputes/differences raised by the teachers. In the

said meeting it was decided that DA would be paid to the

teaching staff of AES at the rate of 58% from July 2012

that is, one step below the Government of Odisha DA

Pattern henceforth and the same will also be followed in

future and the differential amount shall be payable once in

a year from the effective date of declaration by the

Government of Odisha, the arrear DA for the period from

August 2009 to June 2012 shall be calculated considering

the entitlement would be two steps below the applicable DA

rates declared by the State Government and efforts will be

made for extending such DA arrear after obtaining

necessary approval. The gratuity ceiling was also

enhanced, the leave rules were revised and as regards the

age of superannuation, it was decided to keep it

unchanged at 58 years. In short, the claim of the petitioner

is seriously disputed on the ground of waiver, acquiescence

and estoppel.

4. The petitioner has filed a composite rejoinder

to the counter affidavits filed by Opposite Party No. 1 and

Opposite Party Nos. 2 and 3. It is reiterated in the rejoinder

that despite coming forward to take over the management

of the School and committing to provide full finance

towards all expenditure including salary cost, HAL

management went back on its assurance, as a result of

which the service conditions of the staff was changed to

their detriment. It is further stated that the employees of

HAL are getting similar benefits that is, pay and allowances

as extended to the Central Government employees. The

State Government has also extended the pay revision from

the date it is made applicable to the employees of the

Central Government pursuant to the Fifth and Sixth Pay

Commission Report. The benefit of TBA is allowed to HAL

employees and employees of the State Government but the

same has not been allowed to the petitioner though he is

entitled to the same as an employee of an aided

educational institution.

5. A further additional affidavit has been filed by

Opposite Party Nos. 2 and 3. It is stated that at the time

when the School was an aided institution, there was

discontentment among the teaching and non-teaching staff

that were getting grant-in-aid from the Government.

Therefore they, including the present petitioner, submitted

a joint representation on 10.05.1993 indicating the details

of various discrepancies/discrimination as to their pay and

perks and requested the General Secretary of the Society to

manage the School on direct supervision like brother and

sister institutions running under the ownership of the

management of the Society for the better benefit of the

employees working under the payroll of the Society.

Pursuant to letter dated 05.05.1995, the Deputy Secretary

to Government in the Department of School and Mass

Education, the Inspector of Schools, Koraput Circle vide

letter dated 22.6.1995 wrote to the Headmaster of ADAV

High School asking him to send the willingness of

employees in the School for taking further action at his end

with the information that grant-in-aid will not be released

from 01.06.1995 onwards in favor of the School. In

response, the then Headmaster of the School vide letter

dated 27.06.1995, requested all the teaching and non-

teaching staff including the present petitioner, who were

getting grant-in-aid from the Government, to submit their

option in the proforma supplied to them on the very same

day. At the relevant time, 25 staff of the School were

getting grant-in-aid and out of the same, 22 including the

present petitioner opted in the prescribed proforma

agreeing for withdrawal of grant-in-aid and taking over of

the management of the ADAV High School, Sunabeda by

the AES. As such, the Secretary of the ADAV School

Managing Committee vide letter dated 13.12.1996 wrote to

the Inspector of Schools, Koraput Circle, Koraput

requesting therein to transfer those three unwilling staff to

any other aided School. The 22 staff who had opted for

withdrawal of grant-in-aid gave their respective

applications for final withdrawal of the GPF for the period

from February 1994 to May 1995 which were duly

forwarded by the Headmaster to the Inspector of Schools. It

is stated that in such view of the matter the petitioner is

estopped to question the legality of the action of the society

alleging discrimination after 19 years. It is also stated that

the petitioner is guilty of suppression of material facts and

of having approached the Court with unclean hands.

6. Heard Mr. Sidehswar Mallik, learned counsel

for the petitioner and Mr. A.R.Dash, learned counsel

appearing for the opposite parties- HAL.

7. Mr. Mallik would argue that the status of an

educational institution which has once received aid from

the Government, cannot be reversed at any point of time.

Elaborating his argument, Mr. Mallik would submit that

originally the School was a private school which came into

the grant-in-aid fold from 1974 to 1995. As such, it was an

aided educational institution within the meaning of Section

3(b) of the Odisha Education Act, 1969. There is no

provision in the Act permitting reversion of an aided

educational institution to the status of a private school.

Secondly, the status of the School was allowed to be

changed to a private school only on the assurance by the

HAL management that it would manage the institution and

not claim any aid from the Government. The management

however went back on its assurance and instead allowed a

registered Society to manage the institution. As a result,

the service conditions of the employees were changed to

their detriment, which is not permissible in law. It is well

settled that the benefits available to the employees cannot

be changed to their detriment at the will of the

management. Mr. Mallik further argues that having been

part of the grant-in-aid fold, the petitioner is still entitled to

all the benefits that are available to the State Government

employees as also the employees of the aided institutions.

8. Mr. A.R. Dash, on the other hand contends

that the petitioner has not come to the court with clean

hands as he has suppressed material facts. It is argued

that at the time of exercise of option i.e., at the time of

taking over of the school by the Society, the petitioner

could have raised objection or protest if he had any reason

to do so. In fact three employees out of 25 did not exercise

the option for which they were transferred to other

institutions. The petitioner willfully exercised his option to

remain under the management of the Society. Therefore, it

is no longer open to him to raise any grievance in this

regard at such a belated stage. It is further argued by Mr.

Dash that the petitioner was one of the signatories in the

representation submitted by the employees of the

institution expressing their desire to be taken out from the

Government fold as they felt that it would be beneficial to

them. Finally, referring to the minutes of the meeting held

between the representatives of the teachers and the Society

held on 17.7.2012, Mr. Dash contends that having agreed

to the terms and conditions laid down therein it is no

longer open to the petitioner to turn around and take a

different view altogether, that too at this belated stage.

9. The facts of the case as can be culled out from

the rival pleadings and contentions put forth before this

Court give rise to two important issues namely, limitation

and estoppel.

The petitioner's grievance as can be seen from

a perusal of the prayer made in the writ petition is

purported non-payment of revised scale of pay with effect

from 01.01.1996 and 01.01.2006 and the consequential

benefits relating thereto, to be allowed to serve till

completion of 60 years of age and to be granted DA at the

same rate as allowed to the State Government, Central

Government and HAL employees. Whether the claims as

above bear any merit or not is dependent on certain

intrinsic facts which go to the root of the matter.

Admittedly, the institution was established in the year

1968 as a purely private institution. It came into the grant-

in-aid fold, partly according to the answering opposite

parties, in the year 1974. On 10.05.1993 the teaching staff

of the school submitted a representation to the General

Secretary of Aeronautics Education Society, copy of which

is enclosed as Annexure J/2 to the further affidavit filed by

the answering opposite parties. Reading of the said

representation would reveal that according to the teaching

staff, the teachers under the Government payroll were

facing a lot of difficulties regarding sanction of EL, loan,

etc. whereas, the HAL management extends several

facilities like medical, LTC, quarters, postgraduate

allowance etc. It was therefore apprehended by the

representationists that if the School functions as a non-

Government aided institution, they would be losing the

said facilities. On such grounds it was appealed to manage

the School under the direct supervision of the Society. This

representation led to several correspondences between the

HAL management and the Government. The Government

wanted written willingness of the teaching and non-

teaching staff before taking any decision in the matter.

Such willingness appears to have been submitted by 22

out of 25 employees, including the petitioner. Accordingly,

the Government expressed its no objection to the proposal

for taking over of the school by the HAL management on

the condition that it shall not claim any aid from the

Government in future. Such being the factual background

for taking over of the school by the AES, if the employees

including the petitioner had any reason to feel let down or

deprived, it was open to them to raise their protest at the

relevant time. Nothing appears to have been done in all

these years when much water has flown down the bridge. It

is therefore no longer open to the petitioner or for that

matter, any other person to question the correctness of the

decision of the Government or the HAL management or

even of the Society in taking over the School and running it

as a purely private institution. The argument that once an

institution becomes an aided educational institution within

the meaning of the Act it cannot be reverted to its previous

status appears to be ill-founded for the reason that there is

nothing in the Act to prohibit the same.

10. In the case of State of UP vs. Principal,

Abhay Nandan Inter College and others, reported in

2021 SCC OnLine SC 807, the Apex Court held as follows:

"If an institution does not want to accept and comply with the conditions accompanying such aid, it is well open to it to decline the grant and move in its own way xxxxx.

The argument advanced on this score is therefore,

untenable.

11. Be that as it may, fact remains that the

petitioner along with the other employees willfully accepted

the change at the relevant time thereby acquiesced to the

charge. Therefore, they cannot raise any grievance on such

score at this distance of time.

12. It is also to be noted that not only that the

petitioner being one of the teachers initiated the process of

takeover by the HAL management/AES and expressed their

positive willingness for the same, they also accepted the

change for all these years by reaping the benefits offered to

them by the private management without even a

semblance of protest or demur. The decision taken in the

meeting held on 17.07.2012 was also never challenged

before the appropriate forum. On the contrary, the

decisions taken therein were accepted without any protest

by the signatories including the petitioner. This is

therefore, also a clear case of acquiescence and waiver.

13. This also raises the important issue raised by

the answering opposite parties regarding suppression of

material facts. The petitioner, while claiming the

aforementioned relief has not whispered a word either in

the writ petition or in the rejoinder about the meeting held

on 17.07.2012 even though the very same issues were

discussed and agreed upon. This tells upon the conduct of

the petitioner. It is well settled that a litigant has to

approach the Court with clean hands without suppressing

any material fact. Having regard to the conduct of the

petitioner as referred above, this Court is constrained to

observe that the petitioner has observed the rule entirely in

its breach. This Court therefore, records its strong

disapproval of the conduct of the petitioner.

14. Even otherwise, the petitioner being a

signatory to the meeting held on 17.7.2012, wherein the

very same issues raised in the present application having

been dealt with and decided in a particular manner, it is no

longer open to the petitioner to challenge the same

subsequently. This is a case where the law of estoppel

would apply in full force inasmuch as having accepted a

particular decision by endorsing his signature thereto, the

petitioner cannot be allowed to subsequently turn around

and challenge the same.

15. Even on merits, it is seen that the relief

claimed in the writ petition is no longer available to be

granted to the petitioner for the reason that as per the

decision taken on 17.7.2012 necessary revision of the scale

of pay has already been made with consent of the

employees with effect from 2009. As regards the age of

retirement, it is seen that the terms and conditions of the

appointment, which the petitioner had accepted willfully at

the relevant time, clearly provide that the age of retirement

would be 58 years. Significantly, at the relevant time the

age of retirement in case of Government employees was

also 58 years. The claim that the retirement age should be

60 years is therefore, found to be without any basis. As to

the claim for DA, it is seen that as per the decision taken

on 17.07.2012, DA at the rate of 58% was allowed from

July 2012 at the rate of one step below the Government of

Odisha DA pattern henceforth and shall also be followed in

future with the differential amount payable once in a year

from the effective date of declaration by the Government of

Odisha. There is no reason to find fault with such decision.

It is also seen that the employees of the ADAV High School

including the petitioner were entitled to several other

benefits which their counterparts in the State Government

or aided educational institutions were not entitled to such

as, residential quarters, medical benefits, LTC etc. As has

been rightly contended by learned counsel appearing for

the answering opposite parties, if the said benefits are

monetized, it would amount to much more than what the

petitioner would have got had he continued under the

Government payroll.

16. For the following reasons therefore, this Court

finds that the relief claimed by the petitioner in the present

writ petition cannot be granted on the ground of long delay

as also the principles of waiver, acquiescence and estoppel.

Even on merits, the petitioner's claim is found to be

without any valid or justifiable basis. In such view of the

matter, the writ petition being devoid of merit is, therefore,

dismissed but in the circumstances, without any cost.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 14th September, 2022/ A.K. Rana, P.A.