Baijayanti Nayak vs State Of Odisha & Others
2023 Latest Caselaw 13085 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) NO.34453 of 2021

Baijayanti Nayak                ....      Petitioner
                                        Mr./Ms. S. Routray, S.K.
                                        Samal, S.P. Nath, S.Sekhar, J.

BIswal, A.K. Das, M. Panda, Advocates

-versus-

State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. B. Panigrahi, ASC (for Opp. Party Nos.1to 3) Mr. M.K. Mohanty, T.Pradhan, A. Mohanty, Advocates (for Opp. Party Nos.3 & 4 )

W.P.(C) NO.25592 of 2022

Minati Ratha .... Petitioner Mr. S. Jena, B. Mishra, Advocates.

-versus-

State of Odisha & Others ... Opposite Parties Mr. R.N. Mishra, AGA Mr. B. Panigrahi, ASC (for Opp. Party Nos.1 to 5) Ms. S. Panda, S. Thakur, S.

                                        Panda, R. Dash, Advocates
                                        (for Opp. Party No.6)




                   W.P.(C) NO.8973 of 2023

Adikanda Dey                    ....      Petitioner
                                        Mr. S.C. Devdash,S.C. Padhi,
                                        J.R. Khuntia, Adv.

                             -versus-

State of Odisha & Others        ...        Opposite Parties
                                        Mr. R.N. Mishra, AGA
                                        Mr. M.K. Balabantaray, AGA
                                        Mr. S. Rath, ASC
                                        (for Opp. Party Nos.1 to 3)
                                  // 2 //

                                           Mr. S.K. Das, P.K. Behera,
                                           N. Jena, Advocates
                                           (for Opp. Party No.4)



                  W.P.(C) NO.23146 of 2023

Mir Samiruddin                   ....        Petitioner
                                           Mr. S. Routray, S. Sekhar, J.
                                           Biswal, A.K. Das, S.P. Nath,
                                           Advocates

                             -versus-

State of Odisha & Others         ...         Opposite Parties
                                           Mr. R.N. Mishra, AGA
                                           Mr. S.K.Samal, AGA
                                           Mr. B. Panigrahi, ASC



                  W.P.(C) NO.25468 of 2023

Mir Samiruddin                   ....        Petitioner
                                           Mr. S.K. Samal, S.P. Nath,
                                           S.D. Routray, S. Sekhar, J.
                                           Biswal, A.K. Das, Advocates

                             -versus-

State of Odisha & Others         ...         Opposite Parties
                                           Mr. R.N. Mishra, AGA


                  W.P.(C) NO.26243 of 2023

Principal In Charge cum Secy.,   ....        Petitioner
Luipa Degree Mohavidyalaya,                Mr.S.K. Das, P.K. Behera, N.
Mayurbhanj                                 Jena, Advocates

                             -versus-

State of Odisha & Others         ...         Opposite Parties
                                           Mr. R.N. Mishra, AGA
                                           Mr. S.K. Samal, AGA





                                             // 3 //




   PRESENT:

THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

--------------------------------------------------------------------------------------- Date of Hearing: 02.09.2023 and Date of Judgment: 19.10.2023

--------------------------------------------------------------------------------------

Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

Since while taking up all these matters, learned counsel

for the State raised the preliminary objection with regard to

the applicability of the provisions contained under Orissa

Education (Recruitment and Conditions of Services of

Teachers and Members of the Staffs of Aided Educational

Institutions) Rules, 1974 (in short, <The Rules=) to the

employees who are in receipt of Grant-in-Aid in the shape of

Block Grant under different Grant-in-Aid Orders, save and

except, under G.I.A Order,1994, all the matters were heard on

the issue as to whether the provisions contained under the

1974 Rules is mutantis mutandis applicable to the teaching

and non-teaching staffs of aided Educational institutions,

who are in receipt of grant-in-aid under different Grant-in-Aid

Orders, save and except, under G.I.A Order, 1994 in shape of

block grant.

2. Mr. B. Routray, learned Sr. Counsel along with Mr.

Sameer Ku. Das, learned counsel appearing for the

// 4 //

Petitioners in support of the stand that the 1974 Rules also

mutantis mutandis applicable to the employees working in

different Aided Educational Institutions and in receipt of

grant-in-aid under different Grant-in-Aid orders, save and

except GIA Order, 1994, contended that the 1974 Rules came

into force w.e.f 01.04.1975, pursuant to the publication in

the Orissa Gazette Extraordinary dt.12.02.1974. It is

contended that the aforesaid 1974 Rules was framed under

the provisions of Orissa Education Act, 1969 (in short <The

Act=). Rule 2(a) of the aforesaid 1974 Rules provides that the

Act means the Odisha Education Act, 1969 (Odisha Act 15 of

1969).

3. It is contended that as provided under Rule-20 of 1974

Rules, different penalties for good and sufficient reasons can

be imposed on an employee of an Aided Educational

Institution. Similarly, as provided under Rule-21 of the

Rules, it is the Director, who is competent to impose any of

the penalties specified in Rule-20 on any employee. Rule-

21(2) of the Rules provides that without prejudice to Sub-rule

(1) but subject to the provisions of Sub-Rules(3) & (4), any of

the penalties specified in Rule-20 may be imposed in respect

of lower grade employee, by the Headmaster or the Principal,

as the case may be and in respect of any other employee, by

// 5 //

the Managing Committee or the Governing Body, as the case

may be.

3.1. The 1st Proviso to Rule 21(2) provides that in case of

suspension of an employee falling under Clauses-(a) & (b) of

Rule 20, prior approval of the Inspector in respect of any

employee serving in a School and of the Director in relation to

any other employee is required to be obtained.

The 2nd proviso to Rule 21(2) provides that the

Managing Committee or the Governing Body, as the case may

be, may place an employee under suspension at the initiation

of disciplinary proceedings for a period of thirty days,

pending approval of Inspector or the Director, as the case

may be.

3.2. Similarly, it is contended that as provided under the

proviso to Sub-rule(4) of Rule 22 where the employee

concerned is a Headmaster or a Principal, the Director may,

on an application by the Managing Committee or the

Governing Body, as the case may be, appoint an Officer of the

Government holding an equivalent post to conduct the

enquiry. As provided under Sub-rule-(12) of Rule 22, the

disciplinary authority under Sub-rule-2 of Rule 21 shall

forward the record of enquiry together with a copy of orders

passed under Sub-rules(9),(10) or (11) to the Director for his

advice. As provided under Sub-rule-13, on receipt of the

// 6 //

advice of the Director, the disciplinary authority under Sub-

rule (2) of Rule-21 shall consider the advise and determine

the penalty, if any, to be imposed on the employee and pass

appropriate order on the case.

3.3. Placing reliance on the aforesaid provisions contained

under 1974 Rules, learned counsels appearing for the

Petitioners contended that 1974 Rules is applicable to the

Teachers and Members of the staff of Aided Educational

institutions. It is contended that the term <Aided Educational

Institution= is defined under the provision contained under

Section-3(b) of the Act. Section-3(b) of the Act defines Aided

Educational Institution means <private educational institution

which is eligible to, and is receiving Grant-in-Aid from the

State Government, and includes an educational institution

which has been notified by the Government to receive grant-

in-aid.=

Similarly, Section 7-C (1) of the Act provides that the

State Government shall within the limits of its economic

capacity, set apart a sum of money annually for being given

as grant-in-aid to private Educational Institution in the State.

It is contended that as provided under Section 10-A of

the Act, services of teachers of aided Educational Institutions

shall not be terminated without obtaining the prior approval

in writing of the Director in the case of a teacher of a college;

// 7 //

and of the C.I of Schools in the case of a teacher of a school.

The 1974 Rules was framed in terms of the provisions

contained under Section-27 of the Act.

3.4. Learned counsels appearing for the Petitioners

contended that 1974 Rules was framed in terms of the

provisions contained under Section-27 of the Orissa

Education Act and it is to be made applicable to the teachers

and members of the staff of Aided Educational Institutions as

defined under Section-3(b) of the Act.

3.5. It is contended that members of the Staff of Aided

Educational Institutions were extended with the benefit of

grant-in-aid initially in terms of the provisions contained

under the Grant-in-Aid order, 1994. The aforesaid 1994

order was also framed in terms of the provisions contained

under the Orissa Education Act, 1969. But while continuing

with the benefit under GIA Order, 1994, Orissa( non-Govt.

Colleges, Jr. Colleges and Higher Secondary Schools), Grant-

in-Aid Order, 2004 came into existence w.e.f 05.02.2004. The

aforesaid GIA Order, 2004 was also framed under the

provisions of Orissa Education Act, 1969.

3.6. As provided under Paragraph-3 of GIA Order, 2004,

every private educational institution being a Non-Govt.

College, Jr. College or Higher Secondary School which has

become eligible by 1st June 1994 to be notified as Aided

// 8 //

Educational Institution pursuant to the Grant-in-Aid Order,

1994 shall be notified by the Government as required under

clause-(b) of Section-3 of the Act and the institution so

notified shall be entitled to receive grant-in-aid, by way of

block grant, determined in the manner provided in sub-para

2. It is contended that the aforesaid Grant-in-Aid order, 2004

was brought into existence by repealing the provisions of

Grant-in-Aid order, 1994.

3.7. It is further contended that while continuing with the

benefit of Grant-in-Aid under GIA Order,2004, GIA Order,

2008 came into existence w.e.f 20.01.2009 in terms of the

provisions of Odisha Education Act, 1969. As like GIA Order,

2004, under paragraph-3 of GIA Order, 2008, some of the

non-Govt. educational institutions were made eligible for

consideration of receipt of Block Grant for being notified as

Aided Educational Institution under Section-3(b) of the Act.

3.8. Similarly, Grant-in-Aid Order, 2009 was also framed in

accordance with the provisions contained under Orissa

Education Act and under paragraph-3 of GIA Order, 2009,

employees of teaching and non-teaching staffs of different

categories of educational institutions were notified as Aided

Educational Institutions in terms of provisions contained

under Section-3(b) of the Act, those who have not received

// 9 //

Grant-in-Aid or Block Grant and were made eligible for

consideration of receiving block grant for its employees.

3.9. Learned counsel appearing for the Petitioners further

contended that with the promulgation of Orissa (Aided

Colleges, Aided Jr. Colleges and Aided Higher Secondary

School), Grant-in-Aid Order, 2017 which was framed in

exercise of the powers conferred under sub-section 4 of

Section-7-C of the Act, the same was made applicable to the

employees who are governed under the provisions of Grant-

in-Aid Order, 2008 and Grant-in-Aid Order, 2009.

3.10. It is contended by the learned counsels appearing for

the Petitioners that the benefit of Grant-in-aid Order starting

from G.I.A Order 1994 to G.I.A Order 2017 was made

applicable to the employees working in different Aided

Educational Institutions. In view of the definition given to an

Aided Educational Institution under Section 3(b) of the Act,

there is no difference in respect of an Aided Educational

Institution in receipt of Grant-in-Aid under GIA Order, 1994

and in respect of employees in receipt of Block Grant under

GIA Order, 2004 onwards. It is accordingly contended that

since the very basis to receive Grant-in-Aid is that the

institution must be an Aided Educational Institution in terms

of the provisions contained under Section 3(b) of the Act, no

differentiation can be made in respect of an employee working

// 10 //

in an Aided Educational Institution in receipt of Grant-in-Aid

under GIA Order, 1994 and in respect of employees in

receipt of Block Grant under GIA Order, 2004 onwards.

3.11. Since 1974 Rules is applicable to the members and the

staffs of Aided Educational Institution within the meaning of

the definition of Section 3(b) of the Act, there cannot be any

discrimination with regard to the applicability of the 1974

Rules to the employees in receipt of Grant-in-Aid under GIA

Order, 1994 and the employees in respect of Block Grant

under GIA Order, 2004 onwards. Learned counsel for the

Petitioners contended that since the employees working in

different educational institutions and in receipt of Grant-in-

Aid under GIA Order, 2004 onwards are employees of Aided

Educational Institutions within the meaning of Section-3(b) of

the Orissa Education Act, the 1974 Rules mutatis mutandis

also apply to such employees and there cannot be any

discrimination with regard to its applicability to such

employees.

On the question of discrimination, learned counsels

appearing for the Petitioners relied on the decisions of the

Hon'ble Apex Court in the case of D.S. Nakara and others

V. Union of India, AIR 1983 S.C 130 and State of Orissa

& Another Vs. Mamata Mohanty, (2011) 3 Supreme Court

Cases 436. In the Constitution Bench decision, in the case

// 11 //

of D.S. Nakara, Hon'ble Apex Court in Paragraph Nos.6 & 7

has held as follows:

6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

7. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act."

13. The other facet of Art. 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that Art. 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in EP. Royappa v. State of Tamil Nadu(1), it was held that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under:

"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.

14. Justice Iyer has in his inimitable style dissected Art. 14 as under The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-

// 12 //

errants of 'executive excesses'-if we may use current cliche-can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; be you ever so high, the law is above you."(2) Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi & others etc. (3) held that it must, therefore, now be taken to be well settled that what Art.14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art.

14. After a review of large number of decisions bearing on the subject, in Air India etc. etc. v. Nargesh Meerza & Ors. etc etc. (1) the Court formulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Art. 14 is certainly attracted where equals are treated differently without any reasonable basis.

15. Thus the fundamental principle is that Art. 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differntia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.

16. As a corrolary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved ? The thrust of Art. 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Art. 14. The court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may

// 13 //

accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. The International Airport Authority of India & Ors.(1) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.

Similarly, in the case of Mamata Mohanty, Hon'ble

Apex Court in Paragrah 50 has held as follows:

50. In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily. Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statutory. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (vide Matajob Dobey v. H.S. Bhari and State of Karnataka v. Vishwabharathi House Building Coop. Society.)

3.12. It is contended that since as provided under Seciton-

7(C) of the Act, the State Government within the limits of its

economic capacity set apart, a sum of money for being given

as grant-in-aid to private educational institutions in the

State, no difference can also be made in respect of an

employee getting Grant-in-Aid under GIA Order, 1994 and in

respect of an employee in receipt of block grant under GIA

Order, 2004 onwards. It is also contended that by repealing

the provisions of GIA Order, 1994, GIA Order, 2004 came into

// 14 //

existence and by repealing the provisions of GIA Order, 2004,

GIA Order, 2008 came into existence. But in all those Grant-

in-Aid orders starting from GIA order 1994, the very basis to

receive Grant-in-Aid is that the employee concerned should

be an employee of an Aided Educational Institution. Under

Section-3(b) of the Act, no differentiation has been made to an

employee in receipt of Grant-in-Aid under GIA Order, 1994

and in respect of an employee in receipt of Block Grant under

GIA Order, 2004 onwards. It is accordingly contended that in

view of the provisions contained under Section 3(b) of the Act

read with Rule-7-C of the said Act, the employees working in

Aided educational institutions getting the benefit of Grant-in-

Aid under GIA Order, 2004 onwards are also eligible and

entitled to be covered under the provisions of 1974 Rules.

3.13. In support of such submission, learned counsels

appearing for the Petitioners relied on a decision of this Court

passed in the case of Ritanjali Giri Vs. State of Orissa and

others, 2016 (I) ILR CUT 1162. Interpreting the provisions

of Section 3(b) of the Act, this Court held that the Act does

not make any distinction between the Full Grant school or

Block Grant school. Moreover, the private educational

institution which has been notified by the State Government

to receive grant-in-aid is an Aided Educational institution.

// 15 //

The view expressed by this Court in Para-5,6 & 7 of the Order

in the case of Ritanjali Giri are quoted hereunder.

5. The sole question that hinges for consideration is as to whether the benefit of the Scheme applies to the family members of an aided educational institution, which is receiving Block Grant?

6. Section 3(b) of the Orissa Education Act, 1969 defines the Aided Educational Intuitions, which is quoted hereunder.

<3(b) Aided Educational Intuitions means private educational institution which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in-aid.

7. On a bare perusal of the aforesaid provision, it is abundantly clear that private educational institution which is eligible to, and is receiving grant-in-aid from the State Government to receive grant-in-aid is an aided educational institution. The Act does not make any distinction between the full Grant School or lock Grant School. Moreovoer, the private educational institution which has been notified by the State Government to receive grant-in-aid is also an aided educational institution. The application of the petitioner was rejected by the opposite party NO.4 on untenable and unsupportable ground. In view of the above discussion, this Court has no option but to quash the order dated 13.07.2012 passed by the District Education Officer, Balasore, Opposite Party No.4. The matter is remitted back to the opposite party No.4. The opposite party NO.4 is directed to consider the application of the petitioner within a period of three months from the date of production of a certified copy of this order. The writ petition is allowed. No costs.= 3.14. Learned counsel for the Petitioners is also relied

on another decision of this Court in the case of Sarat Ch.

Parida Vs. State of Orissa, 2015(2) ILR CUT 94. This

Court relying on the provisions contained under Section-3(b)

of the Act held that an employee getting salary from the

Government under GIA Order, 1994 and getting salary in

shape of Block Grant will also be covered under the

provisions of Orissa (Aided Educational Institutions'

Employees Retirement Benefit )Rules, 1981. This Court took

such a view in the case of Sarat Chandra Parida as the

// 16 //

benefit of 1981 Rules was not extended in favour of

employees getting the benefit of Grant-in-Aid in the shape of

block grant under GIA Order, 2004 onwards. The view of this

Court contained in Paragraphs- 5 & 7 are quoted hereunder.

"5. The 1981 Rules have been framed by the State Government with the object of providing social security to the staff of aided educational institutions. The Rules came into force on 01.04.1982 vide S.R.O NO.118/82 published in Orissa Gazette Ext. No.234 dated 20.02.1982.

Rule-3 speaks about the applicability of the Rules which is extracted hereunder:

<3. Application of the rules:- These rules shall apply to teaching and non-teaching staff of all recognized non- Government Colleges, High Schools, Senior Basic Schools and M.E. Schools which come under the direct payment system and all non-Government Primary Schools including Sanskrit Tols and Junior Basic Schools fully aided Government in Education and Youth Services Department directly through Panchayat Samities constituted under the Orissa Panchayat Samiti Act, 1959 or through a Notified Area Council or Municipal constituted under the Orissa Municipal Act, 1950.

Provided that Government may, be general or special order may be issued in that behalf, specify and other educational institutions or category or institutions and the staff working therein to whom the rules shall apply.=

7. For application of 1981 Rules to the staff of recognized non-government colleges, Rule-3 thereof requires that the college concerned must have come under the <direct payment system=. This apart there is no other requirement. The plain language of Rule-3 makes it clear that irrespective of the nature of grant-in-aid given by the Government to various staff of a collage, once the college has required status of one coming under the direct payment system then even if a staff is not getting full salary from the Government under the direct payment system or getting only some aid in whatever form including 8block grant9, he will be covered under the Rules and be entitled to pensionary benefits under the Rules taking into account the amount of aid he receives from the Government as salary and the period of his qualifying service. It is apparent from a plain reading of Rule-3 that the expression, <come under the direct payment system= qualifies the institution (college/school) concerned and not a particular staff of the institution. Had it been the intention of the legislature that the expression would qualify the 8staff9, then it could have simply said that the staff of aided institutions who are/were receiving their salary under the direct payment system will be covered under the 1981 Rules. It is admitted by the opposite

// 17 //

parties in their counter affidavit that SVM College, where the Petitioner was working, is an aided college which came under the direct payment scheme. It is also admitted that petitioner9s appointment was approved under the Grant-in-Aid Order, 2009 against the post of Library Attendant from the date if became admissible and he was extended block grant @ 100%. Since the petitioner is a non-teaching staff whose appointment has been approved against an admissible post (Library Attendant) and he has been allowed grant-in-aid in the nature of block grant, he cannot be denied the benefits of 1981 Rules. Therefore, the order of the Director under Annexure-9 refusing pensionary benefits to the Petitioner is unsustainable and the same is hereby quashed. It is directed that the pension case of the petitioner be considered in accordance with the 1981 Rules and disposed of within a period of four months.=

3.15. Learned counsels appearing for the Petitioners

also relied on the decisions of this Court rendered in the

case of Radharani Samal Vs. State of Orissa, reported in

123 (2016) CLT 218 wherein the benefit of Rule 17 of the

1974 Rules was made applicable to the employees in receipt

of Block grant. This Court in Paragraphs-3 & 9 of the case

in Radharani Samal has held as follows.

"3. It is submitted by the learned counsel for the Petitioner that by virtue of Annexure-7, the clarification dated 16.04.2010 issued by the Joint Secretary to Government/School and Mass Education Department, the untrained graduate teachers in Government/Non-Government M.E. and High School on attaining the age of 48 years/are eligible to get trained graduate scale of pay. He drew the attention of the Court to Annexure-B, the letter issued by the Deputy Director(NGS)/Orissa/Directorate of Secondary Education/Orissa to all the Inspectors of Schools to submit the proposal on the cases in which the Managing Committee of Block Grant High Schools have appointed persons against such posts to accord permission by the Government to approve such all such posts. He also further drew the attention of this Court to Annexure-9 where the Head Mistress of Banarnali Brahmachari Girls9 High School has recommended the case of the Petitioner to the concerned Inspector of School to allow her to draw salary as trained teacher as the petitioner has attained the age of 48 years having requisites qualification in accordance with the circular as stated above. With reference to the rejoinder affidavit dated 03.09.2014 filed by the Petitioner to the counter filed by Opposite Party NO.3, he further submits that similarly situated persons have already been paid the necessary differential salary as well as current salary vide No.632 dated 6.2.2014 issued by the DEO, Kalahandi and Office Order No.11007 dated 3.9.2013 issued by the D.E.O.,

// 18 //

Cuttack. So, he submits that there should not be discrimination between the petitioner and her colleagues and accordingly, the petitioner should be paid the differential salary as well as current salary.

9. Keeping in view the aforesaid discussions, this Court is of the view that the Petitioner is entitled to trained graduate scale of pay and consequences. Accordingly, the opposite parties 2 and 3 are directed to fix up the scale of pay of the petitioner in trained graduate scale of pay notionally when he attains the age of 48 years, i.e., July, 2011, calculate the differential salary and disburse the same as well as current salary within a period of two months from the date of production of a certified copy of this order failing which the petitioner is entitled for the same amount with interest at the rate of 9% per annum from the date of his entitlement till actual payment.

3.16. Learned counsels appearing for the Petitioners

accordingly contended that in view of the of decision of this

Court as cited (supra), some of the provisions of 1974 Rules

have been made applicable to employees of aided

educational institutions in receipt of Block Grant. It is

accordingly contended that the provisions contained under

1974 Rules be made applicable to the employees of aided

educational institutions in receipt of block grant in full.

4. Mr. R.N. Mishra, learned Addl. Govt. Advocate while

supporting the stand of the Opp. Parties that the 1974 Rules

is not applicable to the employees working in Aided

Educational institutions and in receipt of block grant

contended that while enacting the provisions of 1974 Rules, it

was clearly indicated under Rule-2 that they shall come into

force on such date as the Government may, by order, appoint

on that behalf. Proviso to Rule-2 provides that they shall be

within the competence of the Government to appoint different

dates in respect of different categories of aided Educational

// 19 //

Institutions. Relying on the proviso to Rule-2, learned Addl.

Government Advocate contended that since there is difference

in between the extension of benefit of grant-in-aid under GIA

Order, 1994 and GIA Order, 2004 onwards and no

notification having been issued by the Government by

entitling the employees in receipt of Grant-in-Aid under GIA

Order, 2004 onwards to be eligible to be covered under 1974

Rules, the aforesaid 1974 Rules cannot be made applicable to

the employees of Aided Educational Institutions, who are in

receipt of Block Grant.

4.1. Learned Addl. Govt. Advocate further contended that as

provided under Rule-8(3) of the 1974 Rules, vacancies as

against the post of Headmaster of aided boys high School

including Principals of aided colleges under the system of

direct payment of full salary cost shall be filled up by eligible

Trained Graduate Teachers from respective categories of high

schools and headmasters and headmistress of respective

categories of Middle M.E. Schools and the lecturers belonging

to the common cadre of the Aided colleges as the case may

be, from the select list prepared by the Selection Board in the

manner prescribed in the Regulation framed by the Selection

Board for that purpose.

4.2. It is contended that since the employees working in

different Aided Educational Institutions, who are in receipt of

// 20 //

Block Grant are not getting full salary cost under the direct

payment scheme and not covered under the common cadre,

so framed by the Government in terms of the Rule-8(3) of the

1974 rules, the benefit of 1974 Rules cannot be extended to

such employees who are in receipt of Block Grant. It is

contended that employees coming under the provisions of GIA

Order, 1994 are getting the full salary cost under the direct

payment scheme and the employees who are in receipt of

Block Grant are yet to get the benefit of full salary cost under

the direct payment system.

4.3. It is also contended that even after promulgation of GIA

Order, 2017, the employees working in aided educational

institutions and getting the benefit of Block Grant under GIA

Order, 2004 onwards are not getting full salary cost, which

has been received by the employees extended with the benefit

under GIA Order, 1994. It is also contended that even though

the employees working and in receipt of Grant-in-Aid under

G.I.A order, 1994 and in receipt of Block Grant under GIA

Order, 2004, onwards are coming within the definition of

aided educational institutions, as provided under Section-3(b)

of the Act, but since the employees are not in receipt of full

salary cost, which is sine qua non for their eligibility to be

covered under the 1974 Rules, the said employees cannot get

the benefit of the provisions contained under 1974 Rules.

// 21 //

4.4. It is also contended that since as provided under

Section-10(C) of the Act, the employees working in Aided

Educational Institutions and in receipt of Block Grant are not

included in the common cadre and such employees having

not in receipt of full salary cost under the Direct Payment

Scheme, the benefit of 1974 Rules can only be made

applicable to the employees of aided educational institutions,

who are in receipt of full salary cost under the Direct payment

Scheme and not to any other categories of employees in

receipt of any grant under any of the Grant-in-Aid order, so

promulgated after GIA Order, 1994.

5. To the aforesaid submission of learned Additional Govt.

Advocate, learned counsels appearing for the Petitioners

contended that since there is no dispute with regard to the

fact that the employees in receipt of full salary cost under GIA

Order, 1994 and the employees in receipt of Block Grant

under GIA Order, 2004 onwards are employees of Aided

Educational Institutions within the meaning of Section 3(b) of

the Act and 1974 Rules being applicable to the employees of

Aided Educational institutions, the stand taken by the leaned

Addl. Govt. Advocate that the employees working under block

grant institutions since are not coming within the common

cadre and accordingly they cannot get the benefit of 1974

Rules, is not acceptable. It is also contended that no

// 22 //

notification as such has also been issued by the Government

making the 1974 Rules applicable to the employees of aided

educational institutions in receipt of Full Salary Cost under

the Direct Payment Scheme of GIA Order, 1994. It is also

contended that payment of Grant-in-Aid is regulated under

Seciton-7-C of the Act and there is no difference in between

the Grant-in-Aid received by the employees under GIA Order,

1994 and the Block Grant in receipt of the employees under

GIA Order, 2004 onwards. It is contended that since the

admissibility of the 1974 Rules is in respect of an employee of

an aided educational institution and the benefit of grant-in-

aid starting from G.I.A Order 1994 onwards have been made

applicable to employees of aided educational institution

within the meaning of Section 3(b) of the Act, the provisions

contained under 1974 Rules is also applicable to the

employees of aided educational institution in receipt of Block

Grant.

6. I have heard Mr. B. Routray, learned Sr. Counsel along

with Mr. Sameer Ku. Das and other learned counsels

appearing for the Petitioner and Mr. S.K. Samal, learned

Additional Government Advocate.

7. Having heard learned counsel for the parties and after

going through the materials available on record and the

submissions made, this Court finds that 1974 Rules was

// 23 //

framed by making it applicable to the employees of Aided

Educational Institutions. Placing reliance to the definition

given to the term <Aided Educational Institutions= under

Section-3(b) of the Act and the power of the State Government

to extend the benefit of Grant-in-Aid to private Educational

Intuitions in the State in terms of Section 7-C of the Act, this

Court is of the view that employees who are in receipt of

Grant-in-Aid under 1994 GIA Order and employees who are

in receipt of Block Grant under GIA Order, 2004 onwards are

employees of aided educational institutions within the

meaning of Section 3-(b) of the Act. Since the State

Government after extending the benefit of Grant-in-Aid under

GIA Order, 1994 faced difficulty in extending Full Salary

Cost, the benefit of Block Grant was introduced by framing

GIA Order, 2004 with the repeal of GIA Order, 1994.

Therefore, as per the considered view of this Court that the

employees in receipt of Full Salary Cost under GIA Order,

1994 and the employees who are in receipt of Block Grant

under different GIA Orders starting from GIA Order, 2004

onwards are employees continuing in Aided Educational

Institutions of the State.

7.1. Therefore, in view of such provisions contained under

Section 3(b) of the Orissa Education Act, read with Section 7-

C of the Act and the decisions of this Court in the case of

// 24 //

Ritanjali Giri as well as Sarat Chandra Parida and Radharani

Samal and of the Hon'ble Apex Court in the case of D.S.

Nakara and Mamata Mohanty as cited (supra), it is the view

of this Court that no discrimination can be made in between

two sets of employees with regard to applicability of the 1974

Rules. While holding so, it is the view of this Court that the

provisions of 1974 Rules as is applicable to the employees of

aided educational institutions in receipt of grant-in-aid and

under G.I.A Order 1994 is also squarely applicable to the

employees working in different educational institutions and in

receipt of Block Grant under GIA Order, 2004 onwards.

Accordingly, the plea taken by the Opp. Parties that 1974

Rules is not applicable to the employees who are in receipt of

Block Grant is not entertained and accordingly rejected. This

Court directs Opp. Party No.1 to extend the benefit of 1974

Rules to the employees of aided educational institutions who

are in receipt of block grant under GIA Order, 2004 onwards

as has already been extended in favour of the employees of

aided educational institution in receipt of Grant-in-Aid under

G.I.A Order, 1994.

The issue is answered accordingly.

Put up all the matter on 31.10.2023 for further orders.

Signature Not Verified
Digitally Signed
Signed by: SANGITA PATRA                                   (Biraja Prasanna Satapathy)
Reason: authentication of order                                       Judge
Location: High Court of orissa, cuttack
Date: 26-Oct-2023 12:50:24
                                sangita