B.P. Das, J.
1. The petitioner, who is an approved Lecturer in an aided college, has filed this writ petition, inter alia, with the following prayer:
Issue rule Nisi upon the opposite parties to show cause as to why Annexure-10 shall not be quashed and as to why a writ of mandamus should not be issued to the opposite parties directing them to pay U.G.C. scale of pay to the petitioner along with arrear differential salary from the date she is entitled thereto and upon their showing no cause or showing insufficient cause to make the said rule Nisi as absolute.
Annexure-10 is the order dated 23.6.2005 passed by the Commissioner-cum-Secretary to Government in Higher Education Department, O.P.1., rejecting the claim of the petitioner for grant of University Grants Commission Scale of Pay (in short, U.G.C.) which is sought to be quashed in this writ petition.
2. The facts as delineated in the writ petition tend to reveal that by order dated 8.9.1980, Annexure-1, the petitioner was appointed as a Lecturer in English against the first post in Cuttack City College, which was later on renamed as Netaji Subhas Memorial College, at Raja Bagicha, Cuttack, where she joined on 15.9.1980. By notification dated 25.9.1997, Annexure-3, the services of the petitioner were confirmed by the Governing Body of the College with effect from 15.9.1983. Since the petitioner had secured 52.5% marks in M.A. examination, the Governing Body of the College moved the Utkal University for condonation of her deficiency in qualification. The Syndicate of the Utkal University held on 19th July, 1986 and 9th July, 1987 considering the resolution passed by the Senate held on 8th July, 1986 condoned the deficiency in the qualification of the petitioner, as per the communication of the Registrar, Utkal University dated 13.2,1989, Annexure-4. Thereafter, the Governing Body submitted a proposal for approval of the appointment of the petitioner as well as some non-teaching staff for the purpose of release of grant in-aid under the Direct Payment Scheme, which was approved by the State Government from the date of her initial appointment, i.e., 15.9.1980, and the Government further released 1/3rd of the salary under the Direct Payment Scheme with effect from 1.6.1988, 2/3rd with effect from 1.6.1990 and full salary cost with effect from 1.6.1992, vide Annexure-5. In the meantime, the petitioner acquired M. Phil qualification.
The U.G.C. appointed a Committee to examine the structure of emoluments and conditions of service of University and College Teachers and considering the recommendations of the Committee, the U.G.C. submitted its recommendations to the Government of India. The Government of India after examining the various recommendations contained in the report and the observations of the U.G.C. communicated its decision to the State Government and requested the State Government to implement the Scheme after taking local conditions into consideration. Considering the aforesaid recommendations of Govt. of India, the State Govt. by the Resolution dated 6.10.1989, Annexure-8, decided to implement the scheme of Revision of Pay Scales for College Teachers on the terms and conditions mentioned therein. Clause-3.1 of the Resolution provided that the revised scales shall be applicable to all categories of full time teachers working in all affiliated Government Colleges and aided non-Government Colleges either covered or eligible to be covered under the Director Payment Scheme till 1.4.1989. Clause-3.2 of the Resolution stipulated that the revised scales of pay shall take effect from 1.1.1986. Subsequently, the State Government by another Resolution dated 6.11.1990 (Annexure-9) decided to implement the Scheme of Revision of Scales of Pay for college teachers with the terms and conditions prescribed by the Government of Orissa in its Resolution dated 6.10.1989.
According to the petitioner, she being a full time teacher working in an aided non-Govt. college is covered by the Direct Payment Scheme prior to 1.4.1989 and, therefore, she has satisfied the norms prescribed in Resolution dated 6.10.1989 (Annexure-8) and is entitled to the U.G.C. scale of pay. Petitioner alleges that though she had made several representations to the opposite parties to allow her the U.G.C. scale of pay since she had satisfied all the requirements indicated in the Resolution dated 6,10.1989, no action was taken by the State Government and the Director of Higher Education in this regard, for which she preferred a Writ Petition being O.J.C. No. 5103/2002 praying for a direction in the nature of Writ of Mandamus to the opposite parties to release revised U.G.C. scale of pay in her favour along with arrear differential salary as well as current salary within a reasonable time. The said Writ Petition was disposed of by this Court on 31.3.2003 with a direction to the opposite parties to consider the case of the petitioner in the light of the judgment dated 24.7.1996 rendered by this Court in O.J.C. No. 6101 of 1995 Bharat Chandra Behera and Anr. v. State of Orissa and Ors. within a period of six weeks and to grant U.G.C. scale of pay to the petitioner if she satisfied the norms of the Resolution dated 6.10.1989. Consequent upon the aforesaid direction, the Commissioner-cum-Secretary to Government, O.P.1, considered the case of the petitioner and rejected the claim of the petitioner by order dated 23.6.2005, vide Annexure-10, Which is impugned in the present writ petition.
3. The reasons assigned in the impugned order dated 23.6.2005, vide Annexure-10, for not admitting the claim of the petitioner are as follows:
(a) The case of the petitioner was not identical to the facts of the case of Bharat Chandra Behera v. State of Orissa and Ors. O.J.C. No. 6101/1995. Bharat Chandra Behera was appointed against the post of Lecturer in History in Nilagiri College, Nilagiri on 11.8.1978 whereas the present petitioner joined on 15.9.1980. The said Nilagiri College got Government concurrence for opening of Intermediate course during the Session 1979-80 whereas the petitioner's College, i.e., Cuttack City College, got Government concurrence for opening of +3 degree course with effect from 1989-90 (1.6.1989).
(b) The U.G.C. guidelines prescribed under Note (1) to para-2 of Resolution dated 6.11.1990 explained the definition of 'College' to mean an aided college, which had been given Government concurrence and University affiliation for opening of +3 Degree Course by the 1 st April 1989 and not thereafter. Para 2(2) (vii) of the said Resolution also stipulated that the teachers whose qualification/norms are below the qualification/norms prescribed by U.G.C. even if such lack of prescribed qualification has been condoned by Government/University are not eligible for U.G.C. scale of pay. As the petitioner had not fulfilled the aforesaid norms of the Resolution dated 6.11.1990 and the petitioner was under-qualified till 1.4.1989 (cut off date), she was not entitled to the U.G.C. scale of pay.
4. The grounds for rejecting the claim of the petitioner as stated in the impugned order, Annexure-10, are that the petitioner's college was not a college within the meaning of Note (1) to Para-2 of the Resolution dated 6.11.1990 and that the petitioner was under- qualified till 1.4.1989 (cut off date). In the counter affidavit filed by the State in support of issuance of Annexure-10, similar stand has been taken.
5. Now, in the aforesaid factual background, we have to examine whether the case of the petitioner is covered by the Resolution dated 6.10.1989 (Annexure-8) and whether the case of the petitioner is covered by the judgment of this Court rendered in O.J.C.No.6101/1995 Bbarat Chandra Behera and Anr. v. State of Orissa and Ors.
It is not disputed by the opposite parties that the under-qualification of the petitioner has been condoned and also her appointment was approved and she was allowed grant-in-aid with effect from 1.6.1988. It is also a fact that the counter affidavit filed by the opposite parties, so far as it relates to legal position, after the decision in O.J.C No. 6101/1995 (supra), is silent. In the aforesaid factual background, let us examine whether the petitioner was at all covered by the aforesaid Resolution dated 6.10.1989, Annexure-8. Clause-3.1 of the Resolution dated 6.10.1989 is as follows:
3.1. Coverage - The revised scales and other measures for improvement of standards in Higher Education shall be applicable to all categories of full time Teachers working in all affiliated Government Colleges and aided non-Government Colleges either covered or eligible to be covered under Direct Payment Schemes till the 1st April 1989. The Scheme will also be extended to full time eligible Teachers working in the College of Accountancy and Management Studies, Cuttack.
Clause-3.1 of the Resolution dated 6.10.1989 covers all categories of full time teachers working in all affiliated Government Colleges and aided non-Government Colleges either covered or eligible to be covered under Direct payment Scheme till 1.4.1989. When the impugned order in Annexure-10 was issued, the petitioner was working as a teacher in Salipur College, which is an aided non-Government College covered under the Direct Payment Scheme before 1.4.1989. The Resolution in Annexure-8 does not confine the benefits given thereunder to the parent colleges where the lecturers were initially appointed. There is force in the submission of the learned Counsel for the petitioner that the opposite parties have misinterpreted Clause-3.1 of the Resolution dated 6.10.1989 by confining it to the colleges where the lecturers were initially appointed. The Resolution dated 6.11.1990, Annexure-9, was also issued for the purpose of implementation of the Scheme of revision of scales of pay for college teachers with the terms and conditions prescribed in the Resolution dated 6.10.1989, Clause-2 of which provides for the category of teachers to whom the instructions shall apply and Clause-2(1) clearly speaks that instructions shall apply to all categories of full time teachers working in all aided non-Government colleges either covered or eligible to be covered under Direct Payment Scheme till 1.4.1989. Admittedly, the petitioner at that point of time was at Salipur College and we have earlier stated that it is not confined to a parent college, in which the petitioner was initially appointed.
6. In our considered opinion, there is no force in the argument of the learned Counsel for the State that since the petitioner was initially appointed in Cuttack City College, Rajabagicha, she cannot be admitted to the benefits of the Resolution dated 6.10.1989 and 6.11.1990. That apart, the petitioner was initially continuing being appointed in the first post of Lecturer in English in City College and thereafter she was transferred to Salipur College in 1998 and presently she is working in City College, renamed as Netaji Subhas Memorial College, Cuttack. Both the Colleges impart education in both +2 and +3 wings and both have received grant-in-aid much prior to 1.4.1989. As to the objection of the opposite parties so far as it relates to the qualification of the petitioner that she has secured only 52.5% marks in M.A. examination, we may refer to the judgment passed in O.J.C. No. 6101/1995 (supra), the facts of which are similar to those of the present case. In that case, petitioner No. 1 had secured 49% marks whereas petitioner No. 2 had secured 52.6% marks in their respective M.A. examinations. This deficiency in qualification was, however, condoned later on. This Court considering the fact of deficiency in qualification and the petitioners acquiring M. Phil Degree held that they were entitled to the benefits flowing from the Government decision.
In the present case, as the petitioner has acquired her M. Phil qualification in the year 1989, she cannot be denied the benefit of getting U.G.C. scale of pay as per the Resolution stated above in the view of the decision in O.J.C. No. 6101/1995 (supra). That apart, the petitioner in paragraph-21 of the writ petition has categorically stated that the State Government had allowed such similar U.G.C. scale of pay to Sri Gopinath Panigrahi, Lecturer in English and Sri Krushna Chandra Patra, Lecturer in Commerce of Berhampur City College, Berhampur, despite the fact that the Degree course was opened in their college after 1.4.1989. For the sake of argument, if we accept the version of the learned Counsel for the opposite parties that the college in which the petitioner was initially appointed does not come within the definition of college, there is no answer to the allegation of the petitioner as to how such a benefit could be extended to the lecturers, namely, Gopinath Panigrahi and Krushna Chandra Patra of Berhampur City College, who stood in the same footing. As the said allegation is not disputed and when the opposite parties are granting benefit of U.G.C. scale of pay to the Lecturers named above, there is no reason as to why the petitioner would be discriminated in the matter for payment of U.G.C. scale of pay.
7. Moreover, much reliance was placed on the Resolution dated 6.11.1990, Annexure-9, which is a decision taken by the State Government for implementation of the Scheme of revised scales of pay. In the judgment rendered by this Court on 13.12.1966 in O.J.C. No. 4912 of 1993 Kartika Ch. Mishra v. State of Orissa, it was held that the Resolution dated 19.3.1990 was merely a guideline which had not replaced the earlier resolution/circular of the Government dated 6.10.1989. So, the subsequent Resolution dated 6.11.1990 under Annexure-9 in which the Govt. decided to implement the revised scale of pay for the college teachers with the terms and conditions prescribed in the resolution dated 6.10.1989, Annexure-8, cannot add any further condition so as to exclude a section of eligible persons from getting the benefits which had been accrued to them on the basis of the Resolution dated 6.10.1989.
8. In our considered opinion, the order dated 23.6.2005 passed by the Commissioner-cum-Secretary to Govt. in Annexure-10 was an outcome of total non-application of mind and misinterpretation of the Resolutions of the Govt. dated 6.10.1989 and 6.11.1990 for coming to the conclusion that the petitioner's college was not a college within the meaning of the Resolution dated 6.11.1990 and that the petitioner was under-qualified. We accordingly quash the order dated 23.6.2005 passed by the Commissioner-cum-Secretary to Government, Department of Higher Education, opposite party No. 1, under Annexure-10 and hold that the petitioner is entitled to get the benefit of revised scale of pay as per the Resolution dated 6.10.1989 under Annexure-8 and the Resolution dated 6.11.1990 under Annexure-9. The opposite parties are directed to compute the entitlement of the petitioner and pay the same to her within a period of six months from the date of receipt of this order.
9. The writ petition is accordingly allowed. There shall be no order as to cost.
A.K. Samantaray, J.
10. I agree.