Judgment:
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.10580 of 2009 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------Smt. Uma Das, aged 65 years, W/o- Sri Nirodbaran Samal, At:-Meriya Bazar, PO: Buxibazar, PS: Lalbag, Town/Dist: Cuttack. … Petitioner -VersusState of Orissa represented through the Secretary, Department of School and Mass Education, Secretariat Building, Bhubaneswar, Dist.-Khurda and another … Opp. parties For Petitioner : Mr. Pratap Chandra Rout For Opp. parties : Mr. A.K. Pandey, [Addl. Standing Counsel School & Mass Education Deptt.]. ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment:
04. 12.2012 B.N. MAHAPATRA, J.This writ petition has been filed with a prayer to direct opposite parties to pay the arrear scale of pay with effect from 01.11.1992 to 30.03.2003 as per the Orissa Revised Pay Scale Rules amended from time to time”
2. Petitioner’s case is that while she was working as an Assistant Teacher, was promoted to the post of Headmistress in Thompson Women Training Institute, Cuttack in accordance with the decision of Diacason Office Bearers’ meeting held on 27.10.1992 with effect from 01.11.1992 in the scale of pay as admissible by the Government of Odisha for a probationary period of one year subject to the approval of Education Department. The School in which the petitioner was working is a minority community School, managed by Christian Missionaries and is governed under Article 30 of the Constitution of India. It is an Aided Educational Institution in terms of Section 3(b) of the Orissa Education Act. Pursuant to Annexure-1, the petitioner submitted her joining report on 01.11.1992 before opposite party No.4. On the date of her joining, the petitioner worked as Headmistress of Thompson Women’s Training Institute, Cuttack and discharged her duties satisfactorily and efficiently and no deficiency was noticed by the opposite parties. The Joint Secretary to Government in the Department of School and Mass Education vide his letter dated 13.04.1994 (Annexure-3) intimated to the Director, Secondary Education, Odisha that the petitioner may be promoted to the post of Headmistress as per decision taken by the Managing Committee of the Institution. After receiving the order under Annexure-3, the Inspector of Schools, Cuttack accorded approval of appointment of the petitioner with effect from 01.11.1992 in the scale of pay of Rs.1700-60-2300-EB-75-3200/- vide Office Order No.5672 dated 28.05.1994”
3. Learned counsel for the petitioner placing reliance on the judgment of this Court in Smt. Dipti Roy and others vs. State of Orissa and others, 2004 (II) OLR 71.submitted that as per the Revised Scale Of Pay Rules, 1989, the petitioner was entitled to scale of pay @ Rs.2000-602300-EB-75-3200-100-3500/-, which her counterparts serving in Government Circle Teachers Training School situated in different parts of Odisha were getting. The Revised Scale of Pay Rules were amended from time to time. In the year 1998, it was amended with effect from January, 1996 and the Scale of Pay of Rs.2000-60-2300-EB-75-3200-100-3500/has been enhanced to Rs.6500-200-10500/-, but the petitioner’s scale of pay has not been corrected in spite of all efforts. In the meantime, petitioner has retired from service on 30.03.2003. For these reasons, the petitioner is also not getting her full pension. Therefore, it is submitted that necessary direction may be given to the opposite parties to regularize the scale of pay enhanced from time to time as per Orissa Revised Pay Scale Rules with effect from the date of appointment of the petitioner as Headmistress on 01.11.1992 till the date of retirement on 30.03.2003 along with full pension amount. It is further submitted that the petitioner is a woman belonging to minority community and running from pillar to post to correct her scale of pay. The action of opposite parties directly hits Article 14 of the Constitution of India. As the fundamental right is guaranteed to every person, the petitioner should not be denied equality before law. Article 39(d) provides equal pay for equal work for both men and women”
4. Mr.Pandey, learned Standing Counsel for the School and Mass Education Department reiterating his stand taken in the counter affidavit submitted that the appointment of petitioner was approved against the post of Headmistress, which is meant for the Aided Educational Institution. The said appointment of petitioner has been concurred by the Government vide letter No.12923/SME dated 13.04.1994 and communicated in Memo No.21474 dated 05.05.1994 of the Director of Secondary Education, Odisha, Bhubaneswar. Petitioner was allowed appropriate scale of pay, i.e., Rs.1700-60-2300-EB-75-3200/- as per O.R.S.P. Rules, 1989 vide office order dated 5672 dated 28.05.1994. Petitioner is not entitled to scale of pay Rs.2000-60-2300-EB-75-3200-100-3500/-, which scale is meant for the incumbents holding the post of O.E.S.II and applicable to the employees, which posts have been concurred by the Government as per the rules framed by the Government from time to time. Petitioner was holding the post of a Trained Graduate Teacher and thereafter, she was promoted to the post of Headmistress. As the petitioner was not holding the post in the cadre of OES-II, she was granted the scale of pay of Rs.1700 to Rs.3200/-. Therefore, the claim of the petitioner that she is entitled to pay scale of Rs.2000-3500/- merits no consideration. The petitioner retired from her service on 30.03.2003 and is receiving her pension as due and admissible under the prescribed Rules. Smt. Dipti Roy’s case (supra) has no application to the petitioner’s case. Concluding his argument Mr. Pandey submitted for dismissal of the writ petition”
5. On the rival contentions of both parties, the following questions arise for consideration by this Court. (i) Whether the petitioner is entitled to get arrear scale of pay w.e.f. 01.11.1992 to 30.03.2003 as per Orissa Revised Pay Scale Rules amended from time to time which her counter parts serving in Government Circle Teachers’ Training School situated in different parts of the State are getting and also full pension on that basis?. (ii) 6. What order?. Petitioner’s case is that she joined as Headmistress in Thompson Women Training Institute, Cuttack with scale of pay of Rs.170060-2300-EB-75-3200/- which has been approved by the Inspector of Schools, Cuttack vide Office Order No.5672 dated 28.5.1994 (Annexure-4). According to her, as per the Orissa Revised Scale of Pay Rules, 1989, she is entitled to the scale of pay of Rs.2000-60-2300-EB-75-3200-100-3500/- as her counterparts serving in Government Circle Teachers Training School situated in different parts of Orissa are getting in terms of judgment of this Court in the case of Smt. Dipti Roy & others (supra) 7. Case of the opp. parties is that the petitioner’s case is not covered by the decision of this Court in the case of Smt. Dipti Roy and others (supra), and the Scale of Pay of Rs.2000-3500/- is meant for incumbents holding post of OES-II duly concurred by the Government as per the Rules framed by the Government from time to time. As the 6 petitioner was not holding the post in the cadre of OES-II, she was granted the scale of pay of Rs.1700 to Rs.3200/-. Therefore, the petitioner’s scale of pay of Rs.2000-3500/- merits no consideration.
8. The instruction given by the District Education Officer to the Senior Standing Counsel for School and Mass Education Department which was produced before this Court by Mr. Pandey for perusal reveals that the petitioner is not entitled to the scale of pay of Rs.2000-3500/-, but she is entitled to receive the scale of pay of Rs.1700-3200/-. So far the employees of Aided High Schools are concerned, the Revised Pay Rules under ORSP Rules, 1996 was not given effect to the employees of such Aided High School from 1.1.1996 to 31.1.2005 due to the pendency of the case before the Supreme Court in the case of Smt. Dipti Roy and others referred to supra. But in the meantime, Govt. has decided to pay the salary to the employee of Aided High Schools from 1.1.1996 to 31.1.2005. The Thompson Women’s Training Institute, Cuttack is an aided educational institution declared by the Govt. and its employees are receiving their salary with due sanction of funds provided by the Govt. As per the order passed by this Court in OJ.No.4339 of 2000 filed by the staff of the Thompson Women’s Training Institute, Cuttack including the present petitioner. Govt. has already been released the salary to the employees in the Revised Scale of Pay, 1996 from 1.2.2005 fixing their pay notionally from 1.1.1996 to 31.1.2005. Necessary proposal has already been moved to the Director, Secondary Education, Odisha vide Letter No.6868 dated 11.5.2012 regarding 7 claim of the total staff of the School amounting to the tune of Rs.28,51,141/for the period from 1.1.1996 to 31.1.2005. The claim of the petitioner has been shown as Rs.3,24,285/- in the said claim prepared by the School in the scale of pay of Rs.1700-3200/-. The amount claimed by the petitioner has not been released by the Govt./Directorate yet and after receipt of funds, the same will be disbursed to the petitioner.
9. In the writ petition, though the petitioner averred that the counterparts serving in Government Circle Teachers’ Training School situated in different parts of Orissa are getting scale of pay of Rs.20003500/-, but she has not given any details with regard to the names of the persons, who are holding equivalent post that of the petitioner and the name of the institution and status of the schools etc.
10. This Court in the case of Smt. Dipti Roy and others (supra), held as under:-
“18. Most of the factual aspects averred in the writ petitions stand unassailed. Admittedly, in consonance with Rule 9 of the 1974 Rules, the members of the teaching and non-teaching staff working in different Private Aided Educational Institutions are entitled to receive the same pay, dearness allowance and subsistence allowance, etc. as admissible to their counterpart in the Government Educational Institutions. This rule casts an onerous duty upon the Government to see that different standards are not maintained in payment of salary and other allowances between the teachers working in Government institutions and Private Aided Institutions.”
11. However, the opp. parties nowhere stated that they have examined the claim of the petitioner with reference to the decision in Smt. 8 Dipti Roy and others (supra) and whether any Headmistress holding equal post serving in the Government Circle Teachers’ Training School are getting salary @ Rs.2000-3500/-.
12. In view of the above, this writ petition is disposed of with a direction to opp. party no.2-Director, Secondary Education, Orissa, Bhubaneswar to examine the case of the petitioner in terms of the decision in Smt. Dipti Roy and others (supra) and find out if any counterpart of the petitioner serving in Government Circle Teachers Training School as Headmistress was getting scale of pay of Rs.2000-3500/- and pass speaking order within a period of eight weeks from the date of receipt of certified copy of this order. If it is found that the claim of the petitioner is genuine, she shall be paid in the scale of pay of Rs.2000-3500/- as her counterparts serving in Government Circle Teachers Training School were getting during the relevant time. In the meantime, the amount of Rs.3,24,285/- as stated in the instruction dated 31.07.2012 given by the District Education Officer shall be paid to the petitioner within the aforesaid time. ………………………... B.N.Mahapatra, J.Orissa High Court, Cuttack Dated 4th December, 2012/ss