Orissa High Court
Ajit Kumar Mishra vs State Of Odisha & Others .... Opposite ... on 21 March, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10252 of 2014
In the matter of an application under Articles 226 & 227 of
the Constitution of India, 1950
..................
Ajit Kumar Mishra .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Mr. S.K. Das, Advocate.
For Opp. Parties : Mr. S.K. Jee, Addl. Govt.
Advocate.
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:21.03.2025 and Date of Judgment:21.03.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
// 2 //
3. The present Writ Petition has been filed by the
Petitioner inter alia with the following prayer:-
"Under the above circumstances, it is therefore humbly
prayed that this Hon'ble Court be graciously pleased to
issue a writ in the nature of mandamus or any other
appropriate writ/writs, order/orders and
direction/directions and direct the opp. parties more
specifically the opp. party no.3 to release the arrear
block grant of the petitioner in the untrained scale @
4496/-from 1.1.2004 to 28.6.2010 and the enhance rate
of block grant @ Rs.8000/- from 1.4.2013 to 9.3.2014
and further the block grant in the trained scale @
Rs.13,500/- from onwards 10.3.2014 within the
stipulated period of time as deem fit and proper.
And for this act of kindness as in duty bound the
petitioner shall ever pray."
4. Learned counsel appearing for the Petitioner
contended that pursuant to the order passed by the
State Education Tribunal (in short 'Tribunal') vide order
dtd.03.02.2006 in GIA Case No.136 of 2004, further
confirmed by this Court in its order dtd.25.09.2007 in
W.P.(C) No.863 of 2007, Opposite Party No.3 initially
vide office order dtd.28.06.2010 under Annexure-1
allowed the Petitioner to join in the School in question.
While issuing such a direction, Opposite Party No.3
also held the Petitioner entitled to get block grant in the
untrained scale of pay from the date he joins in duty.
// 3 //
4.1. It is contended that vide another office order
issued on 29.06.2010 under Annexure-2 by Opposite
Party No.3, appointment of the Petitioner was approved
against a TGT post, so made by the Managing
Committee of Jhadeswar Bidya pitha, Khanua w.e.f.
29.06.2010, but in the untrained scale of pay.
4.2. It is contended that while so continuing as against
a TGT post with receipt of untrained salary, Petitioner
when acquired the B.Ed. qualification from IGNOU, the
result of which was published on 10.03.2014, Opposite
Party No.3 was moved by Opposite Party No.4 with a
request to grant trained graduate scale of pay in favour
of the Petitioner, vide letter dtd.29.04.2014 under
Annexure-3-Series.
4.3. It is contended that on the face of such
acquisition of training qualification with due
recommendation made to grant TGT scale of pay vide
letter dtd.29.04.2014 under Annexure-3-Series, when
no further action was taken, the present Writ Petition
// 4 //
was filed inter alia with the prayer as indicated
hereinabove.
4.4. It is vehemently contended that since the services
of the Petitioner was duly approved pursuant to the
order passed by the Tribunal so merged with order
dtd.25.09.2007 of this Court in W.P.(C) No.863 of 2007,
taking into account the principle of doctrine of merger,
Petitioner is eligible and entitled to get all the benefits
as prayed for in terms of the order passed by the
Tribunal on 03.02.2006 in GIA Case No.136 of 2004 so
confirmed by this Court in its order dtd.25.09.2007 in
W.P.(C) No.863 of 2007. With regard to the principle of
doctrine of merger, reliance was placed to the decision
of the Hon'ble Apex Court in the case of Surendra Pal
Sony vs. Sohanlala (dead) legal heir, reported in
(2020) 15 SCC-771. Hon'ble Apex Court in Para-14 &
15 of the said decision has held as follows:-
"14. The decision in Kunhayammed [Kunhayammed v.
State of Kerala, (2000) 6 SCC 359] was followed by a
three-Judge Bench decision of this Court in Chandi
Prasad [Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC
724] , which held thus : (Chandi Prasad case [Chandi
Prasad v. Jagdish Prasad, (2004) 8 SCC 724] , SCC p.
731, paras 23-24)
// 5 //
"23. The doctrine of merger is based on the principles of
propriety in the hierarchy of the justice delivery system.
The doctrine of merger does not make a distinction
between an order of reversal, modification or an order of
confirmation passed by the appellate authority. The said
doctrine postulates that there cannot be more than one
operative decree governing the same subject-matter at a
given point of time.
24. It is trite that when an appellate court passes a
decree, the decree of the trial court merges with the
decree of the appellate court and even if and subject to
any modification that may be made in the appellate
decree, the decree of the appellate court supersedes the
decree of the trial court. In other words, merger of a
decree takes place irrespective of the fact as to whether
the appellate court affirms, modifies or reverses the
decree passed by the trial court."
15. More recently, the decision in Chandi Prasad
[Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724]
was followed by a two-Judge Bench of this Court in
Shanthi v. T.D. Vishwanathan [Shanthi v. T.D.
Vishwanathan, (2019) 11 SCC 419 : (2019) 4 SCC (Civ)
787] rendered on 24-10-2018 in the following terms :
(Shanthi case [Shanthi v. T.D. Vishwanathan, (2019) 11
SCC 419 : (2019) 4 SCC (Civ) 787] , SCC OnLine SC
para 7)
"7. ... When an appeal is prescribed under a statute and
the appellate forum is invoked and entertained, for all
intents and purposes, the suit continues. When a higher
forum entertains an appeal and passes an order on
merit, the doctrine of merger would apply. The doctrine
of merger is based on the principles of the propriety in
the hierarchy of the justice delivery system. The doctrine
of merger does not make a distinction between an order
of reversal, modification or an order of confirmation
passed by the appellate authority. The said doctrine
postulates that there cannot be more than one operative
decree governing the same subject-matter at a given
point of time."
4.5. A further submission was made that on the face
of the order passed by the Tribunal on 03.02.2006 in
// 6 //
GIA Case No.136 of 2004, so confirmed by this Court in
its order dtd.25.09.2007 in W.P.(C) No.863 of 2007,
Opposite Party No.3 while implementing the said order
could not have passed the Office order dtd.28.06.2010
under Annexure-1 and subsequent Office order
dtd.29.06.2010 under Annexure-2. It is contended
that judgment of a competent court cannot be
considered differently by an administrative order. In
support of the aforesaid submission, reliance was
placed to a decision of the Hon'ble Apex Court in the
case of Madan Mohan Pathak and another Vs.
Union of India and Others, reported in AIR 1978 SC-
803. Hon'ble Apex Court in Para-24 of the said
decision has held as follows:-
"24.M.H. Beg, C.J.-- The Life Insurance Corporation
was constituted under the Life Insurance Corporation
Act 31 of 1956 (hereinafter to be referred to as "the
Act"). On June 1, 1957, the Central Government issued,
under Section 11(1) of the Act, an order prescribing the
pay scales, dearness allowance and conditions of
service applicable to Class III and IV employees. Among
these conditions it is stated that no bonus would be paid
but amenities like insurance and medical treatment free
of cost would be provided. On June 26, 1959, an order
was passed by the Central Government under Section
11(2) of the Act, amending para 9 of the 1957 Order
inasmuch as it was provided that bonus other than
profit sharing bonus would be paid to the employees
drawing the salary not exceeding Rs 500 per month. On
// 7 //
July 2, 1959, there was a settlement between the LIC
and the employees providing for payment of cash bonus
at the rate of one-and-a-half month's basic salary which
was to be effective from September 1, 1956 and valid
upto December 31, 1961. In July 1960, regulations were
framed under Section 49 to regulate the conditions of
service of classes of employees and Regulation 58
provided for payment of non-profit sharing bonus to the
employees. Orders were again passed on April 14, 1962
and August 3, 1963, the effect of which was to remove
the restriction of Rs 500 for eligibility for payment of
bonus. On January 29, 1963, another settlement was
arrived at between the LIC and its employees for
payment of cash bonus at the rate of one-and-a-half
month's basic salary. This was to continue in operation
until March 31, 1969. On June 20, 1970, a third
settlement was reached for payment of cash bonus at
the same rate which was to be effective upto March 31,
1972. On June 26, 1972, a fourth settlement for
payment of cash bonus at the rate of 10 per cent of
gross wages (basic and special pay and dearness
allowance) was made effective from April 1, 1972 to
1973. On January 21, 1974 and February 6, 1974,
settlements for payment of cash bonus at 15 per cent of
gross wages valid for four years from April 1, 1973 to
March 31, 1977, were reached. It is clear that this so
called "bonus" did not depend upon profits earned but
was nothing short of increased wages. The settlements
were approved by the Board of Directors of the LIC and
also by the Central Government. On March 29, 1974, a
circular was issued by the LIC for payment of bonus in
accordance with the settlement along with the salary in
April. In April 1974, the payment of bonus for the year
1973-74 was actually made in accordance with the
settlement. Again, in April 1975, bonus for the year
1974-75 was made in accordance with the settlements.
On September 25, 1975, however, a Payment of Bonus
Amendment Ordinance was promulgated. On September
25, 1975, the LIC issued a circular stating that as the
payment of bonus was being reviewed in the light of the
Ordinance, and, on March 22, 1976, payment of bonus
for the year 1975-76 was to be withheld until a final
decision was taken. Against this, a writ petition was
filed in the High Court of Calcutta. On May 21, 1976,
The Calcutta High Court passed an order recognising
the right of petitioners to payment of bonus for the year
1975-76 which had become payable along with the
salary in April 1976, and ordered that it must be paid to
// 8 //
the employees. Apparently, bonus was treated as part
of the right of the petitioners to property protected by
Articles 19(1)(f) and 31(1) of the Constitution. On May
29, 1976, the Life Insurance Corporation Modification of
Settlement Act, 1976 was enacted by Parliament
denying to the petitioners the right which had been
recognised by the settlements, approved by the Central
Government and acted upon by the actual payment of
bonus to the employees, and, finally, converted into
right under the decision of the Calcutta High Court on
May 21, 1976".
4.6. Reliance was placed to a decision of the Hon'ble
Apex Court in the case of Virender Singh Hooda and
Others Vs. State of Haryana and Another, reported
in AIR 2005 SC-137. Hon'ble Apex Court in Para-65 &
70 (3) of the said decision has held as follows:-
"65. Despite the aforesald conclusion, the Act (proviso
to Section 4(3)) to the extent it takes away the
appointments already made, some of the petitioners had
been appointed much before enforcement of the Act (ten
in number as noticed hereinbefore) in imple-mentation of
this Court's decision, would be unreasonable, harsh,
arbitrary and violative of Article 14 of the Constitution.
The law does not permit the Legislature to take back
what has been granted in implementation of the Court's
decision. Such a course is impermissible.
xxx xxx xxx
70(3). The benefits already granted to the petitioners in
Writ Petition Nos.215 to 218 and 224 of 2002 could not
be taken back. To this extent, retorspectivity is ultra
vires. In all other respects, it is valid".
4.7. Reliance was placed to a decision of the Hon'ble
Apex Court in the case of Southern Petrochemical
Industries Co., Ltd. Vs. Electricity Inspector and
// 9 //
E.T.I.O. & Others, reported in AIR 2007 SC-1984.
Hon'ble Apex Court in Para-135, 136, 146 & 147 of the
said decision has held as follows:-
"135. In R. v. Secy. of State for the Home Deptt. ex p
Hindley [(2001) 1 AC 410 : (2000) 2 WLR 730 (HL)] it is
interesting to note the leading speech of Lord Steyn
which is more reserved. The Court of Appeal also
considered the aforementioned concept in R. v. London
Borough of Newham (Bibi case) [2001 EWCA Civ 607 :
(2002) 1 WLR 237] . In Bibi case [2001 EWCA Civ 607 :
(2002) 1 WLR 237] the Court accepted that it had
jurisdiction to protect a substantive legitimate
expectation but adopted a somewhat different approach
from the approach taken in Coughlan [2001 QB 213 :
(2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] . In a joint
judgment the Court said:
"In all legitimate expectation cases, whether substantive
or procedural, three practical questions arise. The first
question is to what has the public authority, whether by
practice or by promise, committed itself; the second is
whether the authority has acted or proposes to act
unlawfully in relation to its commitment; the third is
what the court should do."
136. In determining whether an authority has acted
"unlawfully", the Court expressed its discontent with the
standard laid down in Coughlan [2001 QB 213 : (2000)
2 WLR 622 : (2000) 3 All ER 850 (CA)] . It will be in the
fitness of the continuing theme, to refer to Coughlan
[2001 QB 213 : (2000) 2 WLR 622 : (2000) 3 All ER 850
(CA)] on this point:
"The traditional view has been that the Wednesbury
[Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER
680 (CA)] categories were exhaustive of what was an
abuse of power. However in Coughlan [2001 QB 213 :
(2000) 2 WLR 622 : (2000) 3 All ER 850 (CA)] the Court
preferred „to regard the Wednesbury [Associated
Provincial Picture Houses Ltd. v. Wednesbury Corpn.,
(1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] categories
as the major instances (not necessarily the sole ones), of
how public power may be misused‟ (para 81).
// 10 //
In Coughlan [2001 QB 213 : (2000) 2 WLR 622 : (2000)
3 All ER 850 (CA)] the Court followed R. v. Inland
Revenue Commrs. ex p Unilever [1996 STC 681 (CA)] in
asking itself whether the reneging by an authority on its
promise was „so unfair as to amount to an abuse of
power‟ (para 78). It concluded that it was. However,
without refinement, the question whether the reneging
on a promise would be so unfair as to amount to an
abuse of power is an uncertain guide."
After having established such an abuse the court may
ask the decision-taker to "take the legitimate expectation
properly into account in the decision-making process". It
does not necessarily follow that a legitimate expectation
of a substantive benefit will be satisfied. (See also
Barratt v. Howard [2000 FCA 190 : (2000) 170 ALR 529
(Federal Court of Australia, Full Court)] .)
Xxx xxx xxx
146. The reason for insertion of such an explanation is
to get over the decision of this Court in State of Madras
v. Gannon Dunkerley & Co. (Madras) Ltd. [AIR 1958 SC
560 : 1959 SCR 379] wherein it has been held that tax
cannot be imposed on sale of materials transferred in
execution of a works contract stating: (AIR pp. 569-70,
para 24)
"24. In our opinion, that is not the inference to be drawn
from the absence of words linking up the meaning of the
word „sale‟ with what it might bear in the Sale of Goods
Act. We think that the true legislative intent is that the
expression „sale of goods‟ in Entry 48 should bear the
precise and definite meaning it has in law, and that that
meaning should not be left to fluctuate with the
definition of „sale‟ in laws relating to sale of goods
which might be in force for the time being. It was then
said that in some of the entries, for example, Entries 31
and 49, List II, the word „sale‟ was used in a wider
sense than in the Sale of Goods Act, 1930. Entry 31 is
„intoxicating liquors and narcotic drugs, that is to say,
the production, manufacture, possession, transport,
purchase and sale of intoxicating liquors, opium and
other narcotic drugs...‟. The argument is that „sale‟ in
the entry must be interpreted as including barter, as the
policy of the law cannot be to prohibit transfers of liquor
only when there is money consideration therefor. But
this argument proceeds on a misapprehension of the
principles on which the entries are drafted. The scheme
// 11 //
of the drafting is that there is in the beginning of the
entry words of general import, and they are followed by
words having reference to particular aspects thereof.
The operation of the general words, however, is not cut
down by reason of the fact that there are sub-heads
dealing with specific aspects."
147.Gannon Dunkerley & Co. (Madras) Ltd. [AIR 1958
SC 560 : 1959 SCR 379] has been noticed by a three-
Judge Bench of this Court in Bharat Sanchar Nigam Ltd.
v. Union of India [(2006) 3 SCC 1] in the following terms:
(SCC p. 30, para 43)
"43. Gannon Dunkerley [AIR 1958 SC 560 : 1959 SCR
379] survived the Forty-sixth Constitutional Amendment
in two respects. First with regard to the definition of
„sale‟ for the purposes of the Constitution in general and
for the purposes of Entry 54 of List II in particular except
to the extent that the clauses in Article 366(29-A)
operate. By introducing separate categories of „deemed
sales‟, the meaning of the word „goods‟ was not altered.
Thus the definitions of the composite elements of a sale
such as intention of the parties, goods, delivery, etc.
would continue to be defined according to known legal
connotations. This does not mean that the content of the
concepts remain static. The courts must move with the
times. [Attorney General v. Edison Telephone Co. of
London Ltd., (1880) 6 QBD 244 : 43 LT 697] But the
Forty-sixth Amendment does not give a licence, for
example, to assume that a transaction is a sale and
then to look around for what could be the goods. The
word „goods‟ has not been altered by the Forty-sixth
Amendment. That ingredient of a sale continues to have
the same definition. The second respect in which
Gannon Dunkerley [AIR 1958 SC 560 : 1959 SCR 379]
has survived is with reference to the dominant nature
test to be applied to a composite transaction not covered
by Article 366(29-A). Transactions which are mutant
sales are limited to the clauses of Article 366(29-A). All
other transactions would have to qualify as sales within
the meaning of the Sales of Goods Act, 1930 for the
purpose of levy of sales tax."
While noticing the said case, it has been held: (SCC pp.
45-46, paras 105-07)
"105. The amendment introduced fiction by which six
instances of transactions were treated as deemed sale
of goods and that the said definition as to deemed sales
// 12 //
will have to be read in every provision of the
Constitution wherever the phrase „tax on sale or
purchase of goods‟ occurs. This definition changed the
law declared in the ruling in Gannon Dunkerley & Co.
[AIR 1958 SC 560 : 1959 SCR 379] only with regard to
those transactions of deemed sales. In other respects,
law declared by this Court is not neutralised. Each one
of the sub-clauses of Article 366(29-A) introduced by the
Forty-sixth Amendment was a result of ruling of this
Court which was sought to be neutralised or modified.
Sub-clause (a) is the outcome of New India Sugar Mills
Ltd. v. CST [AIR 1963 SC 1207] and Vishnu Agencies (P)
Ltd. v. CTO [(1978) 1 SCC 520 : 1978 SCC (Tax) 31] .
Sub-clause (b) is the result of Gannon Dunkerley & Co.
[AIR 1958 SC 560 : 1959 SCR 379] Sub-clause (c) is the
result of K.L. Johar and Co. v. Dy. CTO [AIR 1965 SC
1082] . Sub-clause (d) is consequent to A.V. Meiyappan
v. CCT [(1967) 20 STC 115 (Mad)] . Sub-clause (e) is the
result of Jt. CTO v. Young Men's Indian Assn. [(1970) 1
SCC 462] Sub-clause (f) is the result of Northern India
Caterers (India) Ltd. v. Lt. Governor of Delhi [(1978) 4
SCC 36 : 1978 SCC (Tax) 198] and State of Punjab v.
Associated Hotels of India Ltd. [(1972) 1 SCC 472]
106. In the background of the above, the history
prevailing at the time of the Forty-sixth Amendment and
pre-enacting history as seen in the Statement of Objects
and Reasons, Article 366(29-A) has to be interpreted.
Each fiction by which those six transactions which are
not otherwise sales are deemed to be sales
independently operates only in that sub-clause.
107. While the true scope of the amendment may be
appreciated by overall reading of the entirety of Article
366(29-A), deemed sale under each particular sub-
clause has to be determined only within the parameters
of the provisions in that sub-clause. One sub-clause
cannot be projected into another sub-clause and fiction
upon fiction is not permissible. As to the interpretation of
fiction, particularly in the sales tax legislation, the
principle has been authoritatively laid down in Bengal
Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 :
(1955) 2 SCR 603] , SCR at p. 647:
„The operative provisions of the several parts of Article
286, namely, clause (1)(a), clause (1)(b), clause (2) and
clause (3) are manifestly intended to deal with different
topics and, therefore, one cannot be projected or read
into another.‟ (S.R. Das, Actg. C.J.)
// 13 //
We can also see pp. 720 and 721 (N.P. Bhagwati, J.)."
It was categorically held therein: (SCC p. 38, para 75)
"75. In our opinion, the essence of the right under Article
366(29-A)(d) is that it relates to user of goods. It may be
that the actual delivery of the goods is not necessary for
effecting the transfer of the right to use the goods but
the goods must be available at the time of transfer, must
be deliverable and delivered at some stage. It is
assumed, at the time of execution of any agreement to
transfer the right to use, that the goods are available
and deliverable. If the goods, or what is claimed to be
goods by the respondents, are not deliverable at all by
the service providers to the subscribers, the question of
the right to use those goods, would not arise."
It was furthermore held that only because the Board
keeps itself ready for supply of electrical energy, the
same by itself would not mean that there had been
deliverable goods and the goods have been delivered".
4.8. It is also contended that in the counter affidavit so
filed by Opposite Party No.3, though a stand has been
taken that in consideration of the proposal submitted
by the School under Annexure-3-Series, claim of the
Petitioner to get the benefit of TGT scale of pay has
been rejected, but no formal order of rejection has been
issued or communicated to the Petitioner.
4.9. It is contended that even though no formal order
of rejection in rejecting the claim of the Petitioner to get
the benefit of Trained Graduate Scale of Pay in
consideration of the proposal submitted under
// 14 //
Annexure-3-Series has yet been communicated to the
Petitioner, but in view of the stand taken in Para-15 of
the counter affidavit, the same amounts to rejection of
the Petitioner's claim and this Court can take note of
the same while deciding the claim of the Petitioner as
made in the Writ Petition.
4.10. It is accordingly contended that appropriate
direction be issued to Opposite Party No.3 to extend the
benefit as prayed for.
5. Mr. S.K. Jee, learned Addl. Government Advocate
for the State on the other hand made his submission
basing on the stand taken in the counter affidavit so
filed by Opposite Party No.3.
5.1. It is contended that even though Petitioner was
appointed as against a TGT post, but without having
any training qualification, by the Managing Committee
vide order dtd.30.05.1992 and Petitioner joined as an
untrained Science Teacher, BSc. (CBZ) on 15.07.1992.
But taking into account the communication issued by
the Board of Secondary Education on 01.06.2001
// 15 //
under Annexure-C/3, Petitioner was terminated from
his services vide Managing Committee Resolution
No.17, dtd.02.09.2001.
5.2. Challenging such order of termination, Petitioner
preferred an appeal before the Regional Director of
Education, Bhubaneswar. The said appeal was allowed
vide order dtd.29.07.2003 with an instruction to the
Managing Committee to allow the Petitioner to work in
his former post and with a direction on the Opposite
Party No.3 to forward the application of the Petitioner
for his admission into the B.Ed. course during the
academic sessions 2003-2004.
5.3. Even though the application form of the Petitioner
was forwarded to the Director, TE & SCERT, Orissa
vide letter dtd.30.07.2003 of Opposite Party No.3 to
allow the Petitioner to undergo in service B.Ed.
training, but Petitioner was not selected by the
Selection Committee, due to non-fulfillment of criteria
and condition of the selection procedure prescribed by
the Government.
// 16 //
5.4. It is contended that School in question i.e.
Jhadeswar Bidyapitha, Khanua came into the GIA fold
in terms of the provisions contained under GIA Order,
2004 w.e.f. 01.01.2004. Even though the School was
notified as an Aided Educational Institution and on the
face of continuance of the Petitioner services of the
Petitioner was not approved, Petitioner moved the
Opposite Party No.3 on 09.09.2004.
5.5. Claim of the Petitioner for such approval of his
services when was rejected by Opposite Party No.3 vide
order dtd.21.09.2004 under Annexure-5, Petitioner
challenging such rejection of his claim approached the
State Education Tribunal in GIA Case No.136 of 2004.
5.6. It is contended that the GIA application was
disposed of by the Tribunal vide order dtd.03.02.2006
inter alia with the following direction:-
"ORDER
The case is allowed on contest but without costs.
Annexure-5 is quashed. The O.P. Nos. 1, 2 & 3 shall
approve the appointment of the applicant and shall give
him grant-in-aid at un-trained scale, within a period of
three months of communication of a copy of this
judgment".
// 17 //
5.7. It is contended that order passed by the Tribunal
when was not complied with, Petitioner seeking such
compliance, approached this Court by filing W.P.(C)
No.863 of 2007. This Court vide order dtd.25.09.2007
under Annexure-7 directed the Opposite Parties-State
to comply the same within a period of three (3) months
from the date of receipt of this order. Pursuant to such
order passed by this Court on 25.09.2007 in W.P.(C)
No.863 of 2007 and further order passed in the
Contempt Petition, Petitioner vide order dtd.28.06.2010
under Annexure-1 was allowed to resume his duty in
the School as an Asst. Teacher as against the TGT post,
but with block grant in the untrained scale of pay.
5.8. Vide subsequent order issued on 29.06.2010
under Annexure-2, services of the Petitioner was
approved as against the post of Asst. Teacher in
untrained scale of pay w.e.f. 29.06.2010.
5.9. It is contended that such an order was passed by
Opposite Party No.3 vide order dtd.28.06.2010 and
29.06.2010 under Annexures-1 and 2, in compliance to
// 18 //
the order passed by the Tribunal in GIA Case vide order
dtd.03.02.2006 under Annexure-6 and further order
passed by this Court on 25.09.2007 under Annexure-7.
5.10.It is contended that the Tribunal vide its order
under Annexure-6 since directed for approval of the
appointment of the Petitioner and to give him grant-in-
aid in the untrained scale of pay, no illegality or
irregularity can be found with the order issued under
Annexures-1 and 2.
5.11. It is also contended that order passed by the
Tribunal under Annexure-6, was never assailed by the
Petitioner and he instead seeks for compliance of the
same by filing W.P.(C) No.863 of 2007. Since in terms
of the order passed by the Tribunal, further confirmed
by this Court, services of the Petitioner was approved
as against a TGT post but with untrained salary w.e.f.
29.06.2010, the prayer as made in the Writ Petition to
allow untrained salary from 01.01.2004 to 28.06.2010
is not at all entertainable.
// 19 //
5.12. It is also contended that claim of the Petitioner to
get the benefit of trained graduate scale of pay on his
acquiring B.Ed. qualification from IGNOU, the result of
which was published on 10.03.2014, since has been
rejected by Opposite Party No.3 in consideration of the
proposal submitted under Annexure-3, Petitioner is not
eligible to get the benefit of trained scale w.e.f.
10.03.2014 as prayed for. The stand taken in Para-15
of the counter affidavit reads as follows:-
"15. That, it is humbly submitted that the petitioner has
filed the present writ in W.P(C) No. 10252/2014 praying
for release of arrear Block Grant in the untrained scale
from 01.01.2004 to 28.06.2010 and the enhanced rate
block grant from 01.04.2013 to 09.03.2014 and further
block grant in the trained scale @ 13500/- from
10.03.2014 on which date he became Trained from Indira
Gandhi National Open University, New Delhi as per
provisional certificate.
The claims advanced by the petitioner as above are not
admissible at this stage within the frame work of law and
rules submitted hereto below:
(i) Without considering the counter filed by the Respondent
No. 3, the Inspector of Schools, Mayurbhanj on behalf of
the State Respondents duly authorized in GIA Case No.
136/2004, the learned State Education Tribunal
pronounced judgment 03.02.2006 exparte against the
state respondents.‟
(ii) The ratio of Bibekananda Das in OJC No. 1012/1996 is
not applicable to the present petitioner, Sri Ajit Kumar
Mishra, untrained Teacher.
The Govt, in S & ME Department, Orissa vide letter No.
17696 dt. 01.06.95 approved a number of posts of
// 20 //
Additional Section teachers w.e.f 07.06.94 in different
schools on the basis of Yardstick and roll strength of each
school. At serial No. 10 of the above Govt, letter, the name
of Bibekanana Das was found place as Additional Section
Teacher in Pipli Aided High School with date of his joining
06.11.1989 having B.Sc. Qualification without B.Ed..Pipli
High School was an Aided High School and full Aid was
granted from 01.06.1994 as per OE Order 1994 annexed
as Annexure -E of this counter.
But the petitioner‟s School, Khanua being the privately
managed High School was recognized fully in the year
1996 by the Board and notified GIA by way of Block Grant
as per OE Order 2004 w.e.f 01.01.2004. There is neither
Section Teacher post in any of the Block Grant High
Schools in the entire state including the petitioner‟s school
nor the Govt, has approved the petitioner as untrained
Section teacher in Khanua privately managed High School.
There is provision of depositing some percentage of
amount out of GIA in the provident fund accounts of the
teaching and non-teaching staff of the fully Aided High
Schools including the school of Bibekananda Das a per OE
Order, 194 at Para - 6. But there is no such provision of
Provident Fund Account System in Block Grant High
Schools under OE Order 2004. (iii) In the O.E. Order, 2004.
(iii) it is mentioned unambiguously at para - 3 (a) under
Annexure - D of this counter that GIA by way of Block
Grant shall be admissible in respect of Posts held by
qualified teachers appointed in conformity with the
procedure laid down by the Govt, on the basis of approved
staffing pattern.
The petitioner is an untrained Teacher (B.Sc) appointed
by the invalid Managing Committee of Khanua privately
managed High School as per detailed facts mentioned in
Para -3 & Para -4 of this counter which requires no further
elucidation here to kill the time of the Hon‟ble High Court,
(iv) The petitioner being an untrained hand (B.Sc.) is shown
to have been appointed dated 30.05.1992 against TGT
science post of Jhadeswar Vidyapitha, Khanua a privately
managed High School in contravention to Section 6 (A) (i)(g)
(e) of OE Act, 1969 in order to obtain recognition by a false
declaration. The petitioner did not have B.Ed. Qualification
either on the date of getting recognition of the school in the
year 1996 or at any time till filing of GIA Case No.
// 21 //
136/2004 and W.P(C) No. 863/2007 to be entitled to block
grant under OE Order, 2004.
(v) Board‟s regulation Act 17 has been brought into force
w.e.f 29.04.1977 which makes it obligatory for every
institution to have teachers who must be a Trained
Graduate. If subsequent to 29.04.1977 appointment has
been made to the post of TGT contrary to the aforesaid
provision of the regulation, then the said appointment
would be an invalid appointment and would not confer
any right on the appointee. Since the petitioner is an
untrained hand till filing of GIA case No. 136/2004 and
W.P(C) No. 863/2007, he has no right to continue in the
school,
(vi) The judgment dated 08.01.1997 of the Hon‟ble High
Court passed in OJC No. 370/96 Balaram Tripathy - Vrs -
State is relied upon.
Sri Balaram Tripathy was appointed as Asst, teacher in
Gopabandhu UchVidyapitha, Bolangir by the M.C. in the
year 1984. At the time of his appointment, he was over
age and untrained and as such his appointment was not
approved by the Inspector of Schools concerned. Being
aggrieved Sri Tripathy filed a petition in the Hon‟ble High
Court in OJC No. 370/96 and the Hon‟ble High Court
dismissed the writ petition on 08.01.1997.
Sri Tripathy filed SLP (Civil) No. 6420-21/99 in the Apex
Court. The Hon‟ble Supreme Court in their order dt.
04.02.2000 have also dismissed the SLP.
The School and Mass Education Department, Orissa
cireulated among all concerned vide letter dated
04.04.2000 that the appointments of the untrained and
over age candidates appointed by the Managing
Committee in Non-Govt. Aided High Schools shall not be
approved as per copy of Govt, letter dated 04.04.2000
annexed as Annexure - F of this Counter.
In face of the above two judgments, the judgment of
State Education Tribunal vide Order dated 03.02.2006 in
GIA Case No. 136/2004 taking into consideration of the
ratio of Bibekananda Das for allowing this petitioner
untrained scale of pay by approving his appointment is not
just and proper.".
// 22 //
5.13. Learned Addl. Government Advocate for the State
accordingly contended that since the Petitioner at no
point of time assailed the order passed by the Tribunal
wherein the Tribunal directed for approval his services
with release of grant-in-aid in untrained scale of pay
w.e.f. 28.06.2010 in absence of any challenge made to
the said order, Petitioner is not eligible and entitled to
get the relief so far as it relates to release of untrained
salary for the period from 01.01.2004 to 28.06.2010.
5.14. It is also contended that in the counter affidavit
though a stand has been taken that claim of the
Petitioner to get the benefit of TGT scale of pay on his
acquiring the B.Ed. qualification has been considered
and Petitioner has been found ineligible by Opposite
Party No.3 in consideration of the proposal submitted
by the School under Annexure-3-Series, the same has
also not been assailed by the Petitioner, by filing
appropriate application.
5.15. It is accordingly contended that on the face of the
order passed by the Tribunal, so confirmed by this
// 23 //
Court and the orders issued under Annexures-1 and 2
coupled with the stand taken in Para-15 of the counter
affidavit, Petitioner is not eligible and entitled to get any
relief as prayed for in the present Writ Petition.
6. To the stand taken in the counter affidavit,
learned counsel appearing for the Petitioner made
further submission taking into account the stand taken
in the rejoinder affidavit. It is contented that on the
face of the order passed by the Regional Director of
Education vide order dtd.29.07.2003 in Appeal Case
No.65 of 2001 under Annexure-4, when services of the
Petitioner was neither approved nor he was allowed to
join, Petitioner moved the Opposite Party No.3 by
making a formal representation on 09.09.2004.
6.1. But claim of the Petitioner for approval of his
services as an untrained Teacher was rejected by
Opposite Party No.3 vide order dtd.21.09.2004 under
Annexure-5. Challenging such order of Opposite Party
No.3 and seeking approval of his services, Petitioner
moved the Tribunal by filing GIA Case No.136 of 2004.
// 24 //
The Tribunal vide order dtd.03.02.2006 under
Annexure-6 while quashing the order dtd.21.09.2004,
directed the State authorities to approve the
appointment of the Petitioner and to give him grant-in-
aid in the untrained scale of pay.
6.2. It is contended that when the order passed by the
Tribunal was not complied with, Petitioner seeking
compliance of the order approached this Court by filing
W.P.(C) No.863 of 2007. This Court vide order
dtd.25.09.2007 under Annexure-7 further directed the
State authorities to implement the order passed by the
Tribunal. However, pursuant to the orderd passed by
this Court on 04.08.2009 and 03.05.2010 in CONTC
No.371 of 2008 under Annexures-8 & 9, services of the
Petitioner was approved vide order dtd.29.06.2010
under Annexure-2 in the untrained scale of pay.
6.3. However, since subsequent to such approval of the
services of the Petitioner, Petitioner acquired the B.Ed.
qualification, the result of which was published on
10.03.2014, Petitioner is not only eligible and entitled
// 25 //
to get the benefit of TGT scale of pay w.e.f. 10.03.2014,
but also he is entitled to get all benefit as prayed for in
the Writ Petition.
6.3. It is also contended that on the face of the order
passed by Opposite Party No.3 under Annexure-2, no
further benefit is being extended by Opposite Party
No.3 as due and admissible to the Petitioner.
7. Having heard learned counsel appearing for the
Parties and considering the submissions made, this
Court finds that Petitioner was initially appointed as
against a trained graduate post by the Managing
Committee of the School on 30.05.1992, wherein he
joined on 15.07.1992. However, in terms of the letter
issued by the Board of Secondary Education on
01.06.2001 under Annexure-C/3, when Petitioner was
terminated by the Managing Committee vide its
Resolution dtd.02.09.2001, Petitioner challenging such
order of termination approached the Regional Director
of Education in Appeal Case No.65 of 2001.
// 26 //
7.1. The said appeal was disposed of vide judgment
dtd.26.04.2003 under Annexure-4, with a direction on
the Managing Committee and the Headmaster of the
School to allow the Petitioner to work in his former
post. Opposite Party No.3 was also directed to forward
the application of the Petitioner for his selection to
B.Ed. course in the next academic sessions i.e. 2003-
04.
7.2. On the face of such order passed by the Regional
Director, Petitioner was not allowed to join and his
claim for approval of his appointment as an untrained
Teacher was also rejected by Opposite Party No.3 vide
order dtd.21.09.2004 under Annexure-5.
7.3. Challenging such rejection of his claim for
approval of his services as an untrained Teacher,
Petitioner approached the State Education Tribunal in
GIA Case No.136 of 2004. The Tribunal vide order
dtd.03.02.2006 under Annexure-6, while quashing
order dtd.21.09.2004, directed the Opposite Parties to
// 27 //
approve the appointment of the Petitioner and to give
him grant-in-aid in the untrained scale of pay.
7.4. The said order when was not implemented,
Petitioner approached this Court by filing W.P.(C)
No.863 of 2007 and this Court vide order
dtd.25.09.2007 under Annexure-7, directed the
Opposite Parties to implement the order passed by the
Tribunal. In terms of the said order passed by the
Tribunal so confirmed by this Court and further order
passed in CONTC No.371 of 2008, Petitioner vide order
dtd.28.06.2010 under Annexure-1 was allowed to join
in the School.
7.5. Subsequently vide another order issued on
29.06.2010 under Annexure-2, Opposite Party No.3
approved the services of the Petitioner and allowed him
untrained scale of pay in the shape of block grant w.e.f.
28.06.2010. Thereafter when Petitioner acquired the
B.Ed. qualification, the result of which was published
on 10.03.2014, claim of the Petitioner to allow him
trained graduate scale of pay was recommended by the
// 28 //
School to Opposite Party No.3 vide letter
dtd.29.04.2014 under Annexure-3-Series. But the
same in the meantime was considered by Opposite
Party No.3 and as found from the stand taken in Para-
15 of the counter affidavit, Petitioner has been found
ineligible to get the benefit of trained scale of pay.
7.6. This Court after going through the nature of order
passed by the Tribunal under Annexure-6, so
confirmed by this Court under Annexure-7 and the
order of approval issued vide order dtd.29.06.2010
under Annexure-2, finds no illegality or irregularity in
the said order of approval issued by Opposite Party
No.3 under Annexure-2. As per the considered view of
this Court, the said order has been passed in
compliance to the order passed by the Tribunal and
further confirmed by this Court.
7.7. Since the order passed by the Tribunal was never
assailed by the Petitioner and in terms of the said order
further confirmed by this Court, the order at
Annexure-2 was issued approving the services of the
// 29 //
Petitioner as against the TGT post, but with untrained
scale of pay w.e.f. 28.06.2010, this Court on the face of
such order passed by the Tribunal and further order
passed by this Court, is of the view that Petitioner is
not eligible and entitled to get the benefit of untrained
scale of pay w.e.f. 01.01.2004 to 28.06.2010.
7.8. Not only that claim of the Petitioner to get the
benefit of trained scale of pay so recommended by the
School vide Annexure-3-Series, since as found from the
counter affidavit has been considered by Opposite Party
No.3 and Petitioner has been found ineligible to get the
benefit, unless and until such action of Opposite Party
No.3 is challenged by the Petitioner, Petitioner is also
not eligible and entitled to get the benefit of trained
scale of pay w.e.f. 10.03.2014.
7.9. In view of the nature of order passed by the
Tribunal under Annexure-6, so confirmed by this Court
under Annexure-7, which was never assailed by the
Petitioner at any point of time, this Court is of the view
that the decisions relied on by the Petitioner as cited
// 30 //
(supra) are not at all applicable to the facts of the
present case. This Court accordingly is not inclined to
entertain the Writ Petition with the prayer as made and
dismiss the same. It is open for the Petitioner to take
appropriate steps to get the benefit.
7.10. The Writ Petition stands dismissed with the
aforesaid observation.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
Dated the 21st March, 2025/Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
