Harihar Sahoo vs State Of Odisha And Ors
2023 Latest Caselaw 1905 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                  WPC(OAC) No.2346 of 2006


     (In the matter of an application under Articles 226 and 227 of
     the Constitution of India, 1950)


     Harihar Sahoo                            ....          Petitioner

                                -versus-

     State of Odisha and Ors.                 ....       Opp. Parties


     Advocates appeared in the case:
     For Petitioner            :           Mr. Manoj Kumar Mohanty,
                                                              Adv.
                                -versus-

     For Opp. Parties           :             Mr. P.M. Pattajoshi, SC
                                               ( For S & ME Deptt.)


                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI

                   DATE OF HEARING:-20.12.2022
                  DATE OF JUDGMENT:-02.03.2023

       Dr. S.K. Panigrahi, J.

1. The Petitioner has filed this Writ Petition praying therein to

quash the recast of the scale of pay of the Petitioner, and

direct the Opposite Parties to grant Headmaster scale of pay

as fixed earlier from 18.12.1970 on the basis of the option

pg. 1 exercised by the Petitioner earlier and grant time bound

advancement scale to him from 01.01.1996 and give all the

consequential financial benefits accrued out of the same.

I. FACTUAL MATRIX OF THE CASE:

2. The Petitioner was promoted as the Headmaster of

Birupakhya High School, Brahmanpada, in the district of

Kandhamal on 18.05.1969 and he was allowed Headmaster

scale of pay i.e. in the scale of pay of Rs.215/- to Rs.425/- from

18.12.1970. Subsequently, the headmaster scale of pay was

withdrawn and re-fixed from 18.12.1973 instead of 18.12.1970.

On 17.05.1994, the Inspector of Schools vide order No.3108

allowed the Headmaster scale of pay to the Petitioner with

effect from 18.12.1970. While the Petitioner was srving as

such, he was not given Time Bound Advancement Scale of

Pay as per the provision of Rule-8 of the Orissa Revised Scale

of Pay Rules, 1998. The Petitioner retired from Government

service on attaining the age of superannuation on 30.10.2001.

After retirement from the service, the Director of Secondary

Education, Orissa vide order No.52948 dated 08.11.2001again

re-fixed the Headmaster scale of pay of the Petitioner from

01.12.1972 which was received by the Petitioner belatedly. The

Petitioner made representations to the Secretary, School and

Mass Education Department on 22.10.2003 and, subsequently,

pg. 2 on 20.06.2005. Till today, no action has been taken by the

authority which triggers the Petitioner to file this Petition.

II. PETITIONER'S SUBMISSIONS:

3. Learned counsel for the Petitioner(s) earnestly made the

following submissions in support of his contentions:

4. Birupakhya High School was taken over by the Government

in the year 1997 on the basis of the Resolution dated

16.12.1994 of the Government of Orissa, School and Mass

Education Department with effect from 07.06.1994 and the

Petitioner became a Government Servant. As per the

Resolution of the Government dated 17.12.1994, the scale of

pay of the Petitioner was protected and the service of the

Petitioner was governed by the conditions stipulated in the

said Resolution.

5. The Orissa Revised Scale of Pay Rules, 1998 came into force

with effect from 01.01.1996. Though the scale of pay of the

Petitioner was fixed under the said revised scale of pay, but

no time bound advancement scale of pay was given to him. In

spite of several approach made by the Petitioner to the

Inspector of Schools, no action was taken by him to grant the

same. On attaining the age of superannuation, the Petitioner

retired from the Government service on 31.10.2001. But, the

Director of Secondary Education, Orissa vide order No.52949

dated 08.11.2001 again re-fixed the headmaster scale of pay of

pg. 3 the Petitioner with effect from 01.12.1972 without assigning

any reason to that effect.

6. The Petitioner received the copy of the order belatedly. After

receiving the same, being aggrieved by the re-fixation of the

scale of pay, after his retirement, the Petitioner made a

representation to the Secretary to the Government of Orissa,

School and Mass Education Department on 22.10.2003 seeking

grant of Headmaster scale of pay with effect from 18.12.1970.

It is illegal to re-fix his scale of pay after his retirement from

the Government service. As no action was taken by the

Opposite Party No.1 in the matter, the Petitioner once again

made a representation to the Secretary, School and Mass

Education Department on 20.06.2005. However, it went to the

deaf ear of the Department.

7. The action of the opposite parties re-fixing the scale of the

Petitioner after his retirement under annexure-2 and not

granting time bound scale of pay as per the provisions of the

Orissa Revised Scale of Pay Rules, 1998 are quite illegal,

arbitrary and contrary to the provisions of law.

8. It is submitted that in Akshya Kumar Misra's case, this Court

has already held that the Petitioner's pay could not have been

reduced by the Government once he was serving as the

Headmaster of a high school in the scale of pay Rs. 250-425.

The Petitioner had a vested right to that scale on the basis of

pg. 4 the appointment letter. In view of the said decision of this

Court, the right vested with the Petitioner who got the

Headmaster scale of pay with effect from 18.12.1970 while

discharging the duty of the Headmaster of the school cannot

be taken away from the Petitioner after his retirement from

the service.

9. Petitioner's scale of pay in the revised scale of pay was earlier

fixed as per the option given by the Petitioner. But after

retirement of the Petitioner, his scale of pay was recast

without giving weightage to his option given earlier. So, the

said re-fixation/ recast of the scale of the Petitioner after his

retirement is quite arbitrary and contrary to law and as such

the same is liable to be quashed.

III. SUBMISSIONS BY THE OPPOSITE PARTIES:

10. Per contra, learned counsel for the Opposite Parties intently

made the following submissions:

11. As per Regulation 18(2) of Board of Secondary Education,

Odisha Regulation, 1955, a person to be appointed as a

Headmaster must have at least 7 years of service experience

either is a teacher in High School or as a Headmaster of M.E.

School or both taken together. In this regard, the Government

had also issued a clarificatory letter dated 04.06.2007, to the

Director, Secondary Education, Orissa, Bhubaneswar.

pg. 5

12. The said mistake committed by the Inspector of School, was

rectified by the Director, Secondary Education, Orissa vide

order dated 08.11.2001, and the Petitioner was allowed the

Headmaster scale of pay with effect from 01.04.1972, after

acquiring the required teaching experience by the Petitioner

to hold the post of Headmaster. Moreover, if a subordinate

administrative authority has committed any mistake and the

scale of pay of a person was wrongly fixed, for which he was

not legally entitled for, the same can be rectified by his

superior authority. Therefore, such wrong fixation of scale of

pay contrary to the Regulation, no way bestowed any right on

the Petitioner and withdrawal /rectification of the same by a

superior authority is in no way illegal.

13. The benefit of such Time Bound Advancement Scale of Pay is

extended in lieu of promotion and the same is not automatic.

The Petitioner in order to avail the same had to acquire the

required eligibility criteria for promotion and to go through a

screening committee. Needless to mention here that the

Petitioner had clubbed to distinct cause of actions, i.e

deferment in grant of Headmaster scale of pay and also grant

of Time Bound Advancement Scale of Pay, in a single Writ

Petition. As such the doctrine of misjoinder of cause of action

hits this Writ Petition.

pg. 6 IV. COURT'S REASONING AND ANALYSIS:

14. The Opposite Parties have contended that the benefit of Time

Bound Advancement Scale of Pay is extended in lieu of

promotion and the same is not automatic. The Petitioner in

order to avail the same had to acquire the required eligibility

criteria for promotion and to go through a screening

committee.

15. The Petitioner has rightfully relied on the case of Bidyadhar

Bhuyan Vs. State of Orissa & Others1 and in the case of

Akshya Kumar Misra Vs. D.P. 1 (Schools) Orissa & another2

and submitted that there is no scope for revision of scale of

pay of a person after superannuation as there does not exist

any master and servant relationship after superannuation of

the petitioner.

16. Moreover, as on 07.06.1994 the Pay of the Petitioner was

protected and the Headmaster Scale of Pay of the Petitioner

fixed with effect from 18.12.1970 cannot be re-fixed with effect

from 01.12.1972 after the retirement of the Petitioner. So, said

re-fixation of Headmaster Scale of Petitioner is illegal.

According to the Government, the Petitioner was not eligible

to hold the post of Headmaster on 18.12.1970 which is not at

all correct and if the Petitioner was not eligible on the said

1995 (11) OLR-655

1975 (2) CWR 647

pg. 7 date, he could have been removed from the post of

Headmaster of the School. On the other hand, the service of

the Petitioner was approved as Headmaster with effect from

18.12.1970 which is quite legal and valid. However, after

retirement of the Petitioner, it cannot be said that the

Petitioner was not eligible to hold the post of Headmaster of

the School.

17. At the relevant time, Orissa Revised Scale of Pay Rules, 1998

(for short, 'ORSP Rules, 1998') were in force. Rule 8 of the said

Rules provided for Time Bound Advancement (for short

"TBA") Scale to be given on completion of 15 years and 25

years of service, which was in case the employees who had

not availed such benefit of promotion or TBA scale. The

Orissa Revised Scales of Pay Rules, 2008 (for short, 'ORSP

Rules, 2008') were notified, which came into force with effect

from 01.01.2006. Rule 14 of the ORSP Rules, 2008 provided for

Assured Career Progression (for short, 'ACP') which could be

availed in three stages i.e. on completion of 15 years, 25 years

and 30 years of service in their original post or grade and such

benefit of ACP was to be given only after screening each and

every case by the Screening Committee to be constituted by

the Department.

18. As per Rule-8 of the ORSP Rules, 1998, the Petitioner is

entitled to the Time Bound Advancement Scale of Pay as he

pg. 8 has already served 27 years service in one post and one scale

of pay. Therefore, the Petitioner is entitled to the Time Bound

Advancement Scale of Pay.

19. In light of the aforesaid discussion and having regard to the

present position of law, this Court is of the opinion that the

order for the recast of the scale of pay of the Petitioner

deserves to be quashed. The opposite party is hereby directed

to grant the scale of pay as fixed earlier from 18.12.1970 on the

basis of the option exercised by the Petitioner earlier and

grant Time Bound Advancement Scale of Pay to him from

01.01.1996 and give all the consequential financial benefits

accrued from the same.

20. Accordingly, this Writ Petition is disposed of.

( Dr. S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 2nd March, 2023/ B. Jhankar

pg. 9