Lokanath Behera vs State Of Odisha & Others .... Opp. ...
2025 Latest Caselaw 3412 Ori

Orissa High Court

Lokanath Behera vs State Of Odisha & Others .... Opp. ... on 13 August, 2025

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              W.P.(C) No.2062 of 2024
        In the matter of an application under Articles 226 & 227 of the
        Constitution of India

                 Lokanath Behera                                        ....                    Petitioner

                                                    -Versus-

                 State of Odisha & others                               ....               Opp. Parties
                                Advocates appeared in this case:

                 For Petitioner              :       M/s.Kunal Kumar Swain,
                                                     K. Swain & J.R. Khuntia,
                                                     Advocates

                For Opp. Parties :                   Mr. D.N. Lenka,
                                                     Addl. Government Advocate
                                                     [O.P.Nos.1 to 4]
                                                     Mr. Mahendra Kumar Sahoo,
                                                     Advocate
                                                     [O.P.No.5]
        CORAM:
        THE HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
                                         JUDGMENT

---------------------------------------------------------------------------------------- Date of hearing : 12.08.2025 : Date of judgment : 13.08.2025

------------------------------------------------------------------------------------------------------- PER DIXIT KRISHNA SHRIPAD,J.

Petitioner, a Lecturer in Mathematics in a Non-Government

Aided Junior College, is knocking at the doors of Writ Court

grieving against the order dated 30.12.2023 made by Opposite

Party No.1-Commissioner-Cum-Secretary to Government,

Department of Higher Education, a copy whereof avails at

Annexure-10, whereby his claim inter alia for the grant of

promotion to the post of Senior Lecturer and Reader has been

negatived. He has also prayed for a Writ of Mandamus to the

Opposite Parties to extend the benefit of Lecturer (Group-A) scale

with effect from 2010 and Reader (State Scale) with effect from

2020 on the ground that he satisfies the eligibility conditions

enumerated under Rule-3 of the Orissa Non-Government Aided

College Lecturers' Placement Rules, 2014.

2. After service of notice, official Opposite Parties, having

entered appearance through the learned Additional Government

Advocate, have filed their Counter resisting the petition. However,

the Opposite Party-Institution, being represented by its Panel

Counsel, does not oppose petition prayers. After the filing of

Counter, petitioner has filed Rejoinder seeking leave of the Court.

Both the sides have also supplied their respective Date-Charts,

which are not much in variance with each other, barring a few

differences.

3. Brief facts of the case:

3.1. Petitioner joined the Opposite Party-Institution on 01.08.1993

pursuant to the appointment order dated 20.07.1993 as Lecturer in

Mathematics (First Post). The Institution has been receiving Grant-

in-Aid and it figures at Serial No.220 in the list of 255 Non-

Government Aided Junior Colleges, as has been reflected in

Annexure-A to Odisha (Aided Colleges, Aided Junior Colleges and

Aided Higher Secondary Schools) Grant-in-Aid Order, 2009

(hereafter "GIA Order, 2009"). Petitioner's appointment came to be

approved against the 1st Post of Lecturer in Mathematics and he

was allowed to avail Block Grant with effect from 01.02.2009 vide

Office Order No.5920 Dated 17.02.2010 issued by the Director of

Higher Education at Annexrue-3. Accordingly, petitioner received

the Block Grant with effect from 01.02.2009.

3.2. GIA Order, 2009 was modified by virtue of Orissa Non-

Government Aided College Lecturers' Placement Rules, 2014

(hereafter '2014 Placement Rules') promulgated under section

10(1) of the Orissa Education Act, 1969 vide Notification Dated

04.06.2014 with effect from 01.01.2014. They provide for

placement of the Lecturers to the higher grade with (Group-A) Pay

Scale, if the candidates satisfy the eligibility criteria as prescribed

under Rule-4. These Rules apply inter alia to the Lecturers in Non-

Government Aided Colleges, who are in the pay scale of

Rs.9,300/- to Rs.34,800 with Grade Pay of Rs.4600/- under

O.R.S.P. Rules, 2008. As on the date the said Rules came into

force, petitioner claims to be in this Pay Band.

3.3. The provisions of GIA Order, 2009 came to be amended by

the State Government, vide Notification Dated 24.02.2014, as

Odisha (Aided College, Aided Junior Colleges and Aided Higher

Secondary Schools) Grant-in-Aid Order, 2014 (hereafter, "GIA

Amendment Order, 2014") with effect from 01.01.2014, whereby

sub-para (1) of paragraph-5 of GIA Order, 2009 came to be

substituted to the effect that the eligible employees of Institutions

of the kind shall be paid initial pay + Grade Pay with five

increments in the revised scale of pay of O.R.S.P. Rules, 2008.

Pursuant to the same, the Director of Higher Education issued

Office Order Dated 28.11.2019 granting approval inter alia to the

petitioner for payment of Grant-in-Aid with effect from 01.01.2018.

In this regard, amount of GIA admissible to him came to be fixed at

Rs.38,067/-, the prescribed Pay Scale being Rs.9,300/- to

Rs.34,800/- + Grade Pay of Rs.4600/-.

3.4. Claim of the petitioner for placement in terms of 2014

Placement Rules was not examined on merits in the Lok Adalat

vide Additional Chief Secretary's Note drawn in Promotion Adalat

held on 1.2.2023. He directed Administrative Department to

examine the claim as per the existing Rules within a period of four

(4) weeks after giving an opportunity of hearing to the petitioner.

This exercise having been undertaken by the Commissioner-Cum-

Secretary, the impugned order came to be made negativing his

claim. The grounds of rejection of petitioner's claim succinctly

stated as under:

i) Benefit of Placement Rules, 2014 does not avail to employees of Aided Educational Institution, who are not under Direct Payment System;

ii) The Institution concerned should be fully aided by the Government by way of general or special orders and, that is not the case with the Institution in which petitioner is employed; and

iii) Petitioner is not a member of a Common Cadre in relation to class of employees of Aided Educational Institutions.

4. Learned counsel appearing for the petitioner vehemently

argued that the impugned order is ex facie unsustainable,

inasmuch as the three specific reasons assigned therein belie the

records generated at the hands of the official opposite parties

themselves; demonstrably the Institution is in full Grant-in-Aid;

petitioner has been in the prescribed Pay Band and, therefore,

Rule-3 of 2014 Placement Rules is attracted; there is no

requirement of an employee being a member of Common Cadre

and even otherwise petitioner is deemed to be a member of such

Cadre; Rules in question have to be construed to serve the interest

of employees of the Educational Institutions. In support of his

submission, he presses into service the rule position and a few

rulings. Learned AGA, per contra, resisted the petition passionately

contending to sustain the impugned order. He makes submission

in justification of the reasons, on which the impugned order has

been structured. He too drew attention of the Court to the Rule

position and banked upon a ruling of this Court in support of his

stand. He also added that should relief be granted to the petitioner,

as is sought in the petition, it will have far reaching implications on

the State Exchequer, and that it would also open up flood gates of

litigations.

5. Having heard learned counsel for the parties and having

perused the petition papers and also having adverted to relevant of

the rulings cited at the Bar, this Court is inclined to grant

indulgence in the matter as under and for the following reasons:

5.1. The first submission of petitioner's counsel that the Opposite

Party-Institution is admitted to full Grant-in-Aid, as contra

distinguished from Block Grant, gains sustenance for the simple

reason that the said Institution is enlisted at Serial No.220 of

Annexure-A to GIA Order, 2009 with effect from 6.6.2009, which is

referable to Paragraph-3 Clause (a) of the said Order, which reads

"255 Non-Government Aided Junior Colleges receiving full Grant-

in-Aid prior to commencement of the Odisha Education

(Amendment) Act, 1994 as at Annexure-A". Therefore, contra

contention of learned AGA running counter to the Statutory

Scheme, is liable to be rejected.

5.2. The second submission of learned counsel for the petitioner

that Rule 3 of 2014 Placement Rules is attracted, cannot be

disputed, inasmuch as admittedly he was in the Pay Scale of

Rs.9300/- to Rs.34,800/- with Grade Pay of Rs.4600/- as on the

cutoff date, i.e., 01.01.2014 with effect from these Rules came into

force. Petitioner has produced the order dated 28.11.2019 issued

by the Director of Higher Education at Annexrue-7, wherein the

following particulars are stated in a tabular form:

Name/Designation of Post held Date of release Govt. Order No. & Amount of GIA Date of the of Block Grant date with erstwhile admissible w.e.f. increment Incumbent/DOB/Scale as per GIA DHE (O) Office 1.1.18 of Pay Order, 2009 Release order No. & Date Lokanath Behera, 1st Post 1.2.2009 1854/HE dt. Rs.38,067/- 1.1.2019 Lecturer in 10.02.10. 5920 dt.

 Mathematics, DOB-                                    17.2.10
 16.5.1968, Pay-9300-
 34,800-GP-4600/-

The above apart, petitioner has produced the salary slips for the

relevant period duly authenticated by the competent authorities as

to the pay scale and the grade pay in which he was drawing the

salary, the same having been approved by the Higher Education

Department Notification dated 22.2.2013 referable to ORSP Rules,

2008. It is a case of full Grant-in-Aid.

5.3. The vehement submission of learned AGA that the Institution

in question having the facility of Block Grant and that the petitioner

has not been in the Direct Payment System, is difficult to agree

with and reasons for this are not far to seek:

(i) 1969 Act has been amended vide Amendment Act, 1994

whereby section 7(c) has been introduced containing nine sub-

sections. Sub-section (7) has enacted the policy of Direct Payment

System which becomes obvious by its following text:

"A Governing Body or Managing Committee desirous of availing the facility of grant-in-aid shall make an application for the purpose within such period and shall furnish such information and documents including audited statement of accounts of the institutions as may be prescribed. It shall furnish with the application an undertaking to the effect that grant-in-aid sanctioned for the purpose or meeting part or whole of the salary costs shall be disbursed directly to employees concerned and to refund any excess inadmissible payment that may have been made."

(ii) It is not the case of Opposite Parties in their pleadings that

even after introduction of this new provision, the Institution in

question is not following the Direct Payment System. In fact,

petitioner has produced the very order dated 18.06.2020 issued by

the Deputy Secretary to Government, Department of Higher

Education addressed to the Principal of Opposite Party-Institution

wherein Direct Payment Scheme is mentioned. Petitioner has

been in the pay scale of Rs.9300/- to Rs.34,800/- with Grade Pay

of Rs.4600/- by virtue of approval vide G.O. No.1854/HE dated

10.02.2010 followed by DHE (O) Order No.5920 dated 17.02.2010

and Order No.27371 dated 28.11.2019, as has been reflected in

the pay slip dated 18.06.2020, which also mentions that the

Institution is under Direct Payment Scheme. This document is not

disputed by the Opposite Parties.

5.4. The passionate contention of learned AGA that for availing

the benefit under Placement Order, 2014, an employee being a

member of Common Cadre, is not demonstrated. Section 10-C of

1969 Act provides for constitution of a Common Cadre inter alia in

relation to any category of aided Institutions, is true. Sub-section

(1) of this provision employs the terminology 'The State

Government may, by order, constitute a common cadre' and,

therefore, it cannot be treated as a mandatory requirement, the

word 'may' implying abundant discretion with the Government. His

reliance on a Full Bench decision of this Court in Patras Soreng v.

State of Orissa; 1993 SCC OnLine Ori 347, which discussed

certain aspects of common cadre would not come to the rescue of

the Opposite Parties, inasmuch as the said decision having been

rendered on 18.06.1993, section 7-C of the Act was not there on

the Statute Book. Much discussion in this regard is not warranted.

A decision is an authority for the proposition in the light of the

statute obtaining at the relevant period and that cannot be cited,

when there is material change by way of amendment to the

statute, the said amendment having happened about a year after

the decision.

5.5. The next contention of learned AGA that under Rule-9 of

Odisha Education (RCSTMSAEI) Rules, 1974, the benefit by way

of pay scale or otherwise cannot be availed by an employee of

aided institution in excess of what is payable to an employee of the

Government Educational Institution and, therefore, petitioner

cannot claim the placement benefits under the Placement Order,

2014, is difficult to countenance. Nothing has been stated in the

counter giving particulars of the drawls of employees of the

Government Institutions, working in the comparable cadre to

demonstrate that the claim of the petitioner, if allowed, would

exceed what is payable to employee of the corresponding cadre in

such Institutions. Secondly, Rule 9 intends as a matter of policy

that what is payable to an employee in an aided Institution shall not

be less than what is being paid to corresponding class of

employees in the Government Institutions. The Rule 9(1) reads as

under:

"Every employees of an Aided Educational Institution shall draw the same pay, dearness allowance and subsistence allowance in case of suspension as is admissible to counterpart in the Government institutions under the relevant rules applicable to him and shall ordinarily be paid in the month following the month the month to which the claim relates directly by Government or by any Officer or by any Agency authorized by Government"

Going by the text, context, intent and policy content of this

provision, one can safely state that this rule is not intended to

curtail the statutory benefits otherwise available to employees in

the private aided institutions. An argument to the contrary would

defeat the Placement Order, 2014 and, therefore, does not merit

acceptance.

5.6. The last contention of the learned AGA that if relief is granted

to the petitioner in terms of the prayer, the State Exchequer has to

bleed inasmuch as it would open up flood gates of claims, is not a

legal argument. Even otherwise, it does not merit acceptance

because:

(i) It is the State, which evolves the policy by enacting law or by

promulgating rules, taking into account a host of factors and in the

light of accumulated experience. The laudable object of the policy

in question is to boost the morale inter alia of teaching staff and to

attract meritorious candidates to the noble profession of teaching.

It is teachers, who play a pivotal role in building nations &

civilizations. The British Government did not downwardly revise the

pay scales of teachers during the World War-II, although it did, in

all other employment sectors.

(ii) What is legitimately held out to the citizen, as a matter of

right, cannot be defeated by argument in terrorem. When a policy

is evolved by the State in its competence, a Writ Court cannot

deny relief to the worthy litigant by holding something in variance

of such Policy. The State and its instrumentalities under Article 12

of the Constitution of India cannot be heard to say that they will

face difficulty if their Policies are implemented through the medium

of Court. The Government should celebrate citizen's victory

against it, secured in due process of law. More is not necessary to

specify and less is insufficient to leave the things unsaid.

(iii) Even the argument of 'opening of floodgates of litigations' is

not acceptable. Our system operates on the maxim ubi jus ibi

remedium. Rule of law requires State to abide by law, more

particularly while treating the worthy claims of its employees. It was

Marcus Tullius Cicero, who reiterated "law should be obeyed even

if heavens fall down". It is open to the State to pre-empt the

opening of floodgates of litigations by extending the benefit of the

policy on its own without avoidably driving other similarly

circumstanced employees to litigation process. The Apex Court in

State of Karnataka v. C. Lalitha; (2006) 2 SCC 747 has observed

that all persons similarly situated should be treated similarly

irrespective of the fact that only one person has approached the

Court for relief. That is how, the State, as a Model Employer, is

expected to conduct itself.

(iv) All the above being said in this paragraph, there is some

force in the argument that the Courts have to ensure that the

Public Exchequer should not be hurt. It is one of the

considerations. This can be ensured by directing the payment of

benefits with the prospective effect so that economic hardship of

the State is minimized.

In the above circumstances, this writ petition succeeds. A

Writ of Certiorari issues quashing the impugned order. The OPs

are directed to grant the benefits of Placement Order 2014 to the

petitioner with prospective effect, within a period of eight (8) weeks

keeping in view the observations hereinabove made. Default or

delay shall be viewed seriously, if petitioner is driven to another

legal battle.

Now, no costs.

Web copy of this judgment to be acted upon by all concerned.

Dixit Krishna Shripad, Judge

Orissa High Court, Cuttack The 13th day of August, 2025/Basu

Designation: Junior Stenographer

Location: HIGH COURT OF ORISSA : CUTTACK Date: 13-Aug-2025 19:31:34