Orissa High Court
Management Of Sanjay vs State Of Orissa on 9 July, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.152 of 2018
In the matter of an application under Article 226 of the
Constitution of India.
Management of Sanjay
Memorial Institute of
Technology ........ Appellant
-Versus-
State of Orissa
and others ........ Respondents
For the Appellant: Mr. L. Samantaray
Advocate
For the Opposite Parties: Mr. Partha Sarathi Nayak
AGA
(for Respondent Nos.1 & 2)
Mr. B.K. Mohanty
Advocate
(for Respondent No. 3)
CORAM:
THE HONOURABLE SHRI JUSTICE S.K. SAHOO
AND
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
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Date of Hearing: 24.06.2025 Date of Judgment: 09.07.2025
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S.S. Mishra, J. The present Writ Appeal arises out of the judgment
dated 14.03.2018 passed by the learned Single Judge in W.P.(C)
No.9492 of 2010, whereby the writ petition filed by Respondent
no.3, Subash Chandra Mishra, was allowed. The learned Single
Judge has directed the appellant-institution to fix the pay of
Respondent no.3 as per the AICTE Rules for the post of
Instructor from the date of his appointment (1985-86) till his
retirement, and to disburse the differential arrear salary and
consequential pensionary benefits, if any, accrued on such re-
fixation.
2. Heard Mr. L. Samantaray, learned counsel appearing
for the appellant, Mr. Partha Sarathi Nayak, learned Additional
Government Advocate for the State-Respondent nos.1 & 2 and
Mr. Bijaya Kumar Mohanty, learned counsel for the Respondent
no.3.
3. The appellant-Sanjay Memorial Institute of
Technology (SMIT), is a technical institution established at
Brundaban Vihar, Ankushpur, near Berhampur in the district of
Ganjam, Odisha. The institution is recognized by the All India
Council for Technical Education (AICTE) and is approved by the
Government of Odisha. The Respondent no.3, Subash Chandra
Mishra, was appointed as an Instructor (Welder) at SMIT on
14.10.1983 after completing his High School Certificate (HSC)
examination and acquiring the ITI (Welding) trade qualification.
4. Upon his appointment, the Respondent no.3 was
allowed to draw salary as per the terms outlined in his
appointment letter, which specified a pay scale of Rs.300-8-308-
10-385-LB-12-442-14-470, along with usual Dearness Allowance
(DA) and Additional Dearness Allowance (ADA) as admissible to
State Government employees. The appointment was described
as purely temporary and terminable with one month's notice
from either side.
5. It is the case of Respondent no.3 that while he was
receiving the salary according to the appointment order until
1985-86, the Management did not allow him to draw the
enhanced salary as per the Government of Odisha Regulations
from time to time thereafter. He claimed that he was assured by
the authorities that the differential salary would be paid at the
time of his superannuation. However, his pay was not revised
periodically and he continued to receive his monthly salary at the
discretion of the Management.
6. Learned counsel for the appellant-SMIT, on the other
hand, contended that as a private unaided institution, it is not
bound by the revised pay scales applicable to government
employees. The Management asserted that salary payments are
governed solely by the terms of the appointment letter and the
decisions of the governing body, not by government regulations
or AICTE guidelines. Furthermore, the institution maintains that
the post of Instructor (Welder) in an ITI is governed by the rules
and regulations of the National Council for Vocational Training
(NCVT), not the AICTE, which applies to diploma and degree-
level institutions and teaching facilities.
7. The Respondent no.3 retired from service on
24.06.2008 at the age of 58, on attaining age of superannuation.
Upon retirement, he did not receive the enhanced salary or any
consequential pensionary benefits. In 2010, two years after his
retirement, he filed W.P.(C) No.9492 of 2010 before this Court,
seeking the release of his differential salary and benefits as per
AICTE and government regulations.
8. In the Writ Petition, the Respondent no.3 put forth a
case that since SMIT is a technical institution recognized by both
the AICTE and the Government of Odisha, he was entitled to
receive the salary sanctioned for his post under the relevant
regulations. He provided a calculation sheet of the outstanding
dues and pointed out that he had been deprived of his legitimate
entitlements.
9. The institution, in its counter-affidavit, reiterated its
position that the appointment of the Respondent no.3 was
contractual and that he was only entitled to the pay scale
mentioned in his appointment letter. It also argued that the
claim was time-barred, as the writ petition was filed two years
after retirement and covered a period extending back to 1985-
86. Additionally, the institution emphasized that the AICTE was
not a party to the proceedings, and an application to implead the
AICTE had been dismissed by the Court.
10. The learned Single Judge in W.P.(C) No.9492 of 2010
by judgment dated 14.03.2018, allowed the Writ Petition. The
Court held that the Respondent no.3 was entitled to the pay
scale at par with government employees as per the Orissa
Revised Scale of Pay Rules and also under the AICTE, given the
institution's affiliation. The learned Single Judge directed the
appellant-SMIT to fix the pay of the Respondent no.3 in
accordance with the AICTE Rules from the date of his
appointment (1985-86) until retirement and to disburse the
differential arrear salary and any pensionary benefits accrued
from such re-fixation.
11. Aggrieved by the learned Single Judge's order, the
appellant-SMIT filed the present Writ Appeal, challenging the
direction to pay the Respondent no.3 as per the AICTE scale and
contesting the applicability of AICTE Rules to his post. The
appellant also questioned the maintainability of the writ petition,
the correctness of the learned Single Judge's findings, and the
time-barred nature of the Respondent no.3's claim.
12. The Respondent nos.1 & 2, the State of Odisha and
the Director, Technical Education & Training, in their counter
affidavit, clarified that SMIT is a private unaided institution and
that matters of staff appointment, salary payment, and service
conditions are internal affairs of the institution, over which they
have no control or responsibility. They asserted that they were
not necessary parties to the dispute.
13. On the basis of the pleadings and contesting position
taken by the writ petitioner and the opposite parties, the learned
Single Judge culled out two issues i.e. (i) Whether the writ
petition is maintainable against the Opposite Party nos.3 & 4
institution? (ii) Whether the petitioner is entitled to arrear salary
under the Revised Scale of Pay as per the U.G.C. or A.I.C.T.E.
Guidelines?
14. To answer the point no.(i), the learned Single Judge
has relied upon the judgment of the Hon'ble Supreme Court in
the case of Janet Jeyapaul -Vrs.- SRM University and
others, reported in (2015) 16 Supreme Court Cases 530 and
the judgment of the Division Bench of this Court in Jaminikanta
Das & others -Vrs.- Governing Body of Sanjaya Memorial
Institute of Technology & others, reported in 84 (1997)
Cuttack Law Times 483. The learned Single Judge by
analysing the settled position of law arrived at the conclusion
that the appellant-institution is an instrumentality of "State"
under Article 12 of the Constitution of India, hence, amenable to
the writ jurisdiction. In paragraph-14 of the impugned judgment,
the conclusion is drawn up, which reads as under:-
"14. Not only this, but also the aforesaid
decision of this Court was also followed in similar
question in W.P.(C) No.3175 of 2006. Learned
counsel for the opp. Parties 3 and 4 relied upon
the decision of the learned Single Bench of this
Court in W.P.(C) No.6990 of 2016 in the case of
Prafulla Kumar Mishra vs. State of Orissa
and others (supra), where the learned Single
Judge observed that Sanjaya Memorial
Institution of Technology is not the State within
the meaning of Article 12 of the Constitution and
as such the writ application is not maintainable.
In that case this Court has not referred to the
decision of the Hon'ble Apex Court and the
Division Bench of this Court have not been
placed before this Court as the learned Single
Judge of this court had not discussed the word
"authority" as available in Article 226 of the
Constitution. Hence, with due respect the
decision of the learned Single Judge of this Court
is distinguished and as such the same is not
applicable to the fact and circumstances of the
case."
We have heard both parties at length in regard to the
maintainability of the writ petition. We are completely in
agreement with the conclusion arrived at by the learned Single
Judge that the appellant-institution is "State" under Article 12 of
the Constitution of India, hence, inescapably amenable to writ
jurisdiction.
15. In so far as the point no.(ii) is concerned, the learned
Single Judge has heavily relied upon the appointment letter of
the Respondent no.3, which reads as under:-
"18. The appointment letter vide Annexure-1
which is also admitted by the Opp. Parties 3 and
4 is placed below for reference:-
"Office of the Sanjaya Memorial Institute of
Technology, At/P.O. Ankuspur, Via-
Kukudakhandi, Dist-Ganjam.
No._____________/83. Dated 14.10.83
Office Order
Sri Subha Chandra Mishra, Misra Engineering,
Berhampur is appointed as welder Instructor and
remain in-charge of fabrication in the scale of
Rs.300-8-308-10-358-LB-12-442-14-470/- per
month with usual D.A. and A.D.A. as
admissible to the Govt. servants of Orissa.
The appointment is temporary and terminable
with one month's notice from either side in liew
thereof.
He should join his appointment forthwith.
He should come with his welding Transformer
with him which will be returned after we procure
our own transformer.
Sd/- B. Nayak
30.9.83
President"
The recitation in the appointment letter that the
Respondent no.3 is entitled to usual D.A. and A.D.A. as
admissible to the government servant of Orissa assumes
importance. The learned Single Judge has also relied upon the
service book maintained by the institution in regard to the
Respondent no.3 and arrived at a finding that the institution has
maintained the service book as that of a government servant.
The service book as maintained and the appointment letter
clearly lead to the only reference that the scale of pay as
admissible to the government servant was intended to be
available to the Respondent no.3. The learned Single Judge by
taking into consideration the entire materials on record while
answering the issue no.2 has arrived at the following
conclusion:-
"21. The copy of the Service Book also shows
that the petitioner has been given annual
increments time to time and the service has
been verified from time to time as per procedure
applicable in Government service. Besides this,
the petitioner has been allowed revised scale of
pay with effect from 1.1.2006 and also it
appears that on attaining the age of
superannuation was relieved from duties on
31.7.2008. When the Service Book is maintained
showing revision of scale and on the date of
superannuation he was allowed to retire, the
contention of the learned counsel for Opp.
Parties 3 and 4 that the petitioner was paid
consolidated pay and the job was temporary
one, is untenable.
xxx xxx xxx xxx
23. In view of the aforesaid analysis, this Court
is of the view that the petitioner is not only
entitled to the scale of pay at per with the
Government employees as per the Orissa
Revised Scale of Pay Rules framed from time to
time but also entitled to receive the same under
the A.I.C.T.E. as the institute of Opp. Parties 3
and 4 is affiliated to A.I.C.T.E. Point No.II is
answered accordingly."
Accordingly, the learned Single Judge went on to
give the following relief to the Respondent no.3, which reads
thus:-
"25. It has been observed that the scale of pay
at par with the Government servant of the
petitioner has been revised, but the revised
scale of pay under the A.I.C.T.E. has not been
released. At the same time in the counter
affidavit the Opp. Parties 3 and 4 have taken the
stand that the petitioner is not entitled to any
amount that the contractual amount mentioned
in the appointment letter. In fact from
Annexure-2, it appears that the petitioner has
been paid some salary at the discretion of SMIT,
but neither according to the Orissa Revised
Scale of Pay Rules nor the A.I.C.T.E. Rules. So,
it is axiomatic to observe that the petitioner is
entitled to the scale of pay of an Instructor as
payable in the institution affiliated to A.I.C.T.E.
as claimed by the petitioner. So, this Court
direct the Opp. Parties 3 and 4 to fix up the pay
in accordance with A.I.C.T.E. Rules for the post
of Instructor from the date of his appointment
i.e. 1985-86 till his retirement and make
disbursement of the differential arrear salary. It
is needless to say that after re-fixation of salary,
pensionary benefits, if any, accrued on re-
fixation be re-fixed on the last pay drawn and
differential arrear amount be released to the
petitioner by Opp. Parties 3 and 4. The entire
exercise be completed by Opp. Parties 3 and 4
within a period of four months from today."
16. We do not see any perversity or illegality in the
conclusion drawn by the learned Single Judge. Taking into
consideration the conclusion and appreciation drawn by the
learned Single Judge, in view of the limited scope of the
jurisdiction in so far as Writ Appeal is concerned, we prefer not
to interfere with the judgment dated 14.03.2018 passed by the
learned Single Judge in W.P.(C) No.9492 of 2018. However, it is
relevant to take into consideration the law laid down by the
Hon'ble Supreme Court in Union of India -Vrs.- Tarsem
Singh reported in (2008) 8 Supreme Court Cases 648
establishing the principle that while a continuing wrong may
exist in the context of service matters (such as pay fixation), the
claim for arrears of salary is subject to limitation. The Court held
that monetary claims should ordinarily be restricted to a period
of three years preceding the date of filing the writ petition,
except in cases where the employee has been continuously
pursuing the claim through representations or legal proceedings
without undue delay. Relevant part of the said judgment reads
as under:-
"7. To summarise, normally, a belated service
related claim will be rejected on the ground of
delay and laches (where remedy is sought by
filing a writ petition) or limitation (where remedy
is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule
is cases relating to a continuing wrong. Where a
service related claim is based on a continuing
wrong, relief can be granted even if there is a
long delay in seeking remedy, with reference to
the date on which the continuing wrong
commenced, if such continuing wrong creates a
continuing source of injury. But there is an
exception to the exception. If the grievance is in
respect of any order or administrative decision
which related to or affected several others also,
and if the re-opening of the issue would affect
the settled rights of third parties, then the claim
will not be entertained. For example, if the issue
relates to payment or re-fixation of pay or
pension, relief may be granted in spite of delay
as it does not affect the rights of third parties.
But if the claim involved issues relating to
seniority or promotion etc., affecting others,
delay would render the claim stale and doctrine
of laches/limitation will be applied. In so far as
the consequential relief of recovery of arrears for
a past period, the principles relating to
recurring/successive wrongs will apply. As a
consequence, High Courts will restrict the
consequential relief relating to arrears normally
to a period of three years prior to the date of
filing of the writ petition."
The Bombay High Court, in a recent Division Bench
decision in the case of Shishuvihar Shaishanik Sanstha
Chalisgaon & Anr. -Vrs.- The State of Maharashtra & Ors.,
reported in 2024 LiveLaw (Bom) 566, reiterated that even if
the right to proper salary is a continuing one, the arrears claim is
limited to three years preceding the petition. The Court
specifically applied the Tarsem Singh (supra) principle and
restricted the claim for salary arrears to this period. Applying the
above principle, the petitioner, having retired in 2008 and filed
the writ petition in 2010, would be entitled to claim arrears of
salary under the UGC or AICTE Guidelines only for the three
years preceding the date of filing the writ petition. It is apparent
on record that the petitioner had not been continuously agitating
the claim through timely representations or legal action, the
relief for arrears of salary cannot extend to the entire period
from the date of appointment or even from the date of
entitlement under the revised pay scales.
17. In light of the aforementioned observation, the
judgment of the learned Single Judge dated 14.03.2018 is
modified to the extent that the Respondent no. 3 is only entitled
to the arrears of salary confined to the period of 3 years.
18. Accordingly, the Writ Appeal is disposed of.
(S.S. Mishra)
Judge
S.K. Sahoo, J. I agree.
(S.K. Sahoo)
Judge
The High Court of Orissa, Cuttack
Dated the 09th July 2025/Swarna
Designation: Senior Stenographer
Location: High Court of Orissa
Date: 09-Jul-2025 19:42:35
