Mrs. Laxmipriya Das, Sashikanta Parida and Others Vs. State of Orissa and Others - Court Judgment

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service - grant in aid - effect of - orissa aided educational institutions (appointment of lecturers validation) act,1998 and articles 14 and 16 of constitution of india - petitioners appointed as lecturers in different faculties of aided colleges or aided junior colleges, by concerned governing body on temporary basis against approved posts - respondents have released grant-in-aid in terms of validation act to several other lecturers who are similarly situated as petitioners - thus, action of respondents amounts to gross discrimination and suffers from vice of violation of articles 14 and 16 of constitution - hence, present petition - whether validation of services of lecturers of aided educational institutions in consonance with act of 1998 ipso facto entitle them to receive salary cost out of grant-in-aid and if so, from which date ? - held, lecturers whose appointments have been validated in consonance with act, would only be entitled to receive salary from when act came into force - it is needles to say that in consonance with rule 9 of rules, petitioners are entitled to receive current salary at par with scale of pay received by their counter parts working in government colleges/institutions - in consonance with clause 12 of grant-in-aid order,1994, it is open for state government to make provisions in budget for payment of arrear salary from commencement date of act till date of approval or in alternative, pass necessary orders to cause deposit of arrear salary payable to petitioners in g.p.f. or investing same in bonds whichever would be more convenient to government - with above observations and directions, writ applications are disposed of - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the said validation acts however did not stipulate any provision for release of grant-in-aid, like section 3(2) of the 1998 validation act. 6. for the sake of bravity and better appreciation, relevant portion of section 3 of the orissa act 14 of 1998 is quoted hereinbelow :3. validation of certain appointments :(1) notwithstanding anything contained in the education act or inthe rules framed thereunder, the lecturers of aidedcolleges and aided junior colleges who have beenappointed on temporary basis against approved or admissible posts by the concerned governing bodies during theperiod between the 1st january, 1985 and the 31stdecember, 1992 and are continuing as such, having therequisite qualification prescribed to hold such post andare in pay roll of the concerned college against the saidapproved or admissible post, as the case may be, shall bedeemed to have been validly and regularly appointed, andno such appointment shall be challenged in any courtof law merely on the ground that such appointment wasmade otherwise than in accordance with the procedurelaid down in the education act or the rules framedthereunde 9. reading of sub-section (2) of section 3 of the validatiod act, 1998 (quoted supra) clearly reveals that the entitlement of the lecturers whose appointments have been validated, is subject to the following restrictions :(a) they will be governed by the provisions of the orissa (non-government colleges, junior colleges and higher secondary schools) grant-in-aid, order, 1994. (b) they will be entitled to receive grant-in-aid towards their salary cost only as per the scale of pay admissible to non-government college lecturers from time to time. clause-12 of the 1994 order deals with arrear payment towards grant-in-aid admissible to the post in educational institutions falling within category-'a-i'.the said paragraph clearly stipulates that arrear payment would be subject to funds being available in the budget for this purpose, and be madein such manner and in such form as the state government may determine from time to time. further, the grant-in-aid order, 1994 having clearly stipulated modalities for payment of salary cost to the lecturers, the so called embargo created under section 7-c of the orissa education act, 1969, in my opinion, shall not stand on the way of the petitioners, who are otherwise eligible to receive the same in consonance with section 3(2) of the 1998.validation act and the provisions of 1994 grant-in-aid order. further section 7-c(1) of the orissa education act clearly stipulates that the state government, shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to 'private educational institutions'of the state. thus, there is absolutely no embargo in denying the petitioners whose services have been validated under the 1998 act from receiving salary components like other employees of the same institution. 8665 of 2000) wherein it has been clearly held that since the appointment of petitioners (in the said case) has been validated, the question, of payment of arrear salary automatically flows under sub-section (2) of section 3 of the validation act, 1998 and this court directed the state government to release arrear salary.a.s. naidu, j.1. the petitioner are serving as lecturers in aided educational institutions of the state, they are neither litigation minded nor litigation is their pursuit. however, the lackadaisical attitude of the authorities has thrust litigation upon them, which they are constraint to pursue willy nilly, by approaching the portals of this cpurt.the moot point which needs determination in the present case is as to whether validation of services of the lecturers of aided educational institutions in consonance with the provision of the orissa act 14 of 1998 ipso facto entitle them to receive salary cost out of the grant-in-aid and if so, from which date ?as the same points have been agitated in number of cases, i dispose of all the cases by this common older.3. it is submitted by the learned counsel, that the petitioners were appointed as lecturers in different faculties of aided colleges/aided junior colleges, by the concerned governing body on temporary basis against approved or admissible posts during the period from 1st january, 1985 to 31st december, 1992 and are continuing in such posts and discharging their duties to the fullest satisfaction of the authorities concerned. they also possess the requisite qualification prescribed by the law to hold such posts. unfortunately, however, their appointments were not approved by the authorities on some ground or other. while matter stood thus, the legislature of the state of orissa thought it just and prudent to promulgate the orissa act 14 of 1998 i. e. the orissa aided educational institutions (appointment of lecturers validation) act. 1998 which received the assent of the governor on july 17th, 1998 (hereinafter called as 1998 validation act) to validate the appointment of lecturers working in non-govt. educational institutions.4. it is further submitted that, the authorities after due application of mind and after thoroughly examining the proposals submitted by the concerned colleges, accorded validation to the appointments of the petitioners in consonance with the provisions of 1998 validation act.it is pertinent to mention here that before promulgation of act 14 of 1993. validation acts of 1978, 1981 and 1989 were promulgated by the state of orissa. by virtue of the said acts, the appointments of lecturers who were appointed and were continuing with or without brake, were validated in past. the said validation acts however did not stipulate any provision for release of grant-in-aid, like section 3(2) of the 1998 validation act. in consonance with the earlier validation act, a lecturer whose service is validated became also entitled to receive salary cost from grant-in-aid and there is no dispute that salary is paid to all the lecturers whose services were validated by different validation acts in past.5. the sole grievance of the petitioners in the present writ application is that though their services have been validated under the 1998 validation act, the authorities are not disbursing their salary-cost as a result of which they are deprived of receiving their legitimate entitlement. it is also emphatically submitted that the opp. parties have released grant-in-aid in terms of 1998 validation act to several other lecturers who are similarly situated as the petitioners. thus, the action of the opp. parties amounts to gross discrimination and suffers from the vice of violation of the provisions enshrined under articles 14 and 16 of the constitution of india.6. for the sake of bravity and better appreciation, relevant portion of section 3 of the orissa act 14 of 1998 is quoted hereinbelow :3. validation of certain appointments : (1) notwithstanding anything contained in the education act or inthe rules framed thereunder, the lecturers of aidedcolleges and aided junior colleges who have beenappointed on temporary basis against approved or admissible posts by the concerned governing bodies during theperiod between the 1st january, 1985 and the 31stdecember, 1992 and are continuing as such, having therequisite qualification prescribed to hold such post andare in pay roll of the concerned college against the saidapproved or admissible post, as the case may be, shall bedeemed to have been validly and regularly appointed, andno such appointment shall be challenged in any courtof law merely on the ground that such appointment wasmade otherwise than in accordance with the procedurelaid down in the education act or the rules framedthereunder. xx xx xx (2) the lecturers whose appointments are so validated shall be governed by the orissa (non-government colleges, junior colleges and higher secondary schools) grant-in-aid, order, 1994 for the purpose of their entitlement, but they shall be entitled to receive grant-in-aidtowards their salary-cost only as per the scale of pay admissible to a non-government college lecturer from time to time, with effect from the date of the commencement of this act. explanation : the expression 'admissible post' and'approved post' shall have the same meaning as respectively assigned to them in the order referred to in subsection (2) of this section.7. in course of hearing my attention is drawn to annexure-2, the order passed under the 1998 validation act validating the services of different lecturers, which contains the following condition ;'payment of grant-in-aid to these lecturers is subject to stipulation under section 7-c(1) of the orissa education act, 1969 read with the provisions under the aided educational institutions (appointment of lecturers validation) act, 1998 and the grant-in-aid order, 1994.'8. it is submitted by the learned counsel for the petitioner that the government taking resort to the aforesaid condition, incorporated in the order of approval, cannot deny the lecturers whose services have been otherwise validated under the 1998 validation act from enjoying the privileges and entitlements flowing out of sub-section (2) of section 3 of the 1998 validation act.9. reading of sub-section (2) of section 3 of the validatiod act, 1998 (quoted supra) clearly reveals that the entitlement of the lecturers whose appointments have been validated, is subject to the following restrictions :(a) they will be governed by the provisions of the orissa (non-government colleges, junior colleges and higher secondary schools) grant-in-aid, order, 1994. (b) they will be entitled to receive grant-in-aid towards their salary cost only as per the scale of pay admissible to non-government college lecturers from time to time. (c) such entitlement will be given effect to from the date of commencement of 1998 validation act. 10. so far as the first condition is concerned, it is apt to note that in exercise of powers conferred under sub-section (4) of section 7-c of the orisse education act, 1969, the state government promulgated the orissa (non-government colleges, junior colleges and higher secondary schools) grant-in-aid, order, 1994 (hereinafter called as 1994, order) to regularise and regulate, payment of grant-in-aid to private educational institutions or to any post or to any person employed in such institutions i.e. non-government colleges. junior colleges and higher secondary schools.11. for the purpose of grant-in-aid, the non-government educational institutions have been classified mainly into three categories, namely, 'a'-i, 'b'-ii and 'c'-iii vide clause-4 of the 1994 order.'a-i' category educational institutions are those colleges/ institutions which have received, grant-in-aid from the government or in respect of which grant-in-aid has been sanctioned by government prior to the commencement of the amendment act.'b-ii category educational institutions are those which are imparting education for five years or more and have not received grant-in-aid from government for any post.'c-iii category educational institutions are those which have already been established and have received recognition of government and affiliation prior to the commencement of the amendment act, but do not come within categories i and ii.12. be that as it may, it is submitted by the bar that the college in which the petitioners are appointed, satisfy the nomenclature of 'a-i' category of non-government educational institutions and the college is receiving grant-in-aid from the government.clause 9(1) of the 1994 grant-in-aid order deals with posts in a non-government educational institutions coming under category-'a-i' in respect of which grant-in-aid had been sanctioned prior to commencement of the amended act.clause 9(2) of the 1994 grant-in-aid order deals with the posts which are otherwise admissible and/or eligible subject to satisfying certain conditions.sub-clause (b)(i) of clause 9(2) specifically stipulates that a post in a non-government educational institution coming under category 'a-i' for which no grant-in-aid has been sanctioned prior to commencent of the amendment act shall be eligible,if ;(i) the post was admissible as per workload and the yardstick prevalent prior to commencement of the amendment act; (ii) has been filled up prior to that date and (iii) it has completed the qualifying period of five years or more and/or of three years or more in case the institution is situated in the backward area. 13. learned counsel for the petitioners emphatically submitted that the posts held by the petitioners, fully satisfy all the criteria of'a-1'category of institutions and also satisfy the stipulations made in clause 9(2)(b)(i) of 1994 order. however, no grant-in-aid has been sanctioned to the post in question which have been approved/validated under the 1998 validation act, and the posts are otherwise entitled and eligible to receive salary cost out of grant-in-aid.clause-12 of the 1994 order deals with arrear payment towards grant-in-aid admissible to the post in educational institutions falling within category-'a-i'. the said paragraph clearly stipulates that arrear payment would be subject to funds being available in the budget for this purpose, and be madein such manner and in such form as the state government may determine from time to time.14. a cumulative reading of different paragraphs of 1994 grant-in-aid order leads to an irresistible conclusion that all non-government educational institutions which come under the category of 'a-i' are eligible to receive grant-in-aid towards salary costs of approved posts, subject to the only restriction thatso far as arrear grant-in-aid is concerned, the same shall be paid on availability of funds in the budget for the said purpose and shall be made in such a manner and in such form as the state government may determine from time to time.15. so far as the second restriction of 1998 validation act is concerned, a reference to rule 9 of the orissa education (recruitment and conditions of service of teachers and members of the staff of aided educational institutions) rules, 1974 would reveal that every employee of an aided educational institution is entitled to draw the same pay, d.a. as is admissible to his counterpart serving in the government educational institutions under the relevant rules applicable to him and shall ordinarily be paid in the month following the month to which the claim relates directly by government or by any officer or by any agency authorised by government. the said section, according to me, puts an end to the controversy regarding the quantum/amount payable to the lecturers whose services have been approved and there is absolutely, no ambiguity regarding such entitlement with regard to the scale of pay so far it relates to month to month (current salary) of lecturers, whose appointments are validated by 1998 validation act.16. so far as the third restriction is concerned, 1998 validation act has made it very clear that the lecturers whose appointments are approved, are entitled to receive salary cost only with effect from the date of commencement of 1998 act. the said provision absolutely leaves no ambiguity regarding the date from which the petitioners are entitled to receive their salary. thus, the claim of the petitioners regarding payment of arrearsalary from the date of their appointment is not sustainable inlaw and the said relief is hereby rejected.17. mr. mishra, learned standing counsel appearing for the state, drawing my attention to section 3(1) of 1998 validation act submitted that the non-obstante clause incorporated in section 3(1) relates to only validation and not to payment of grant-in-aid.18. mr. mishra, relying upon section 7-c of the orissa education act, 1969, submitted that notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order, no grant-in-aid shall be paid and no payment towards salary costs or any other expense shall be made to any private educational institution or for any post or to any person employed in any such institution after the commencement of the orissa education (amendment) act, 1994 except in accordancewith an order or rule made under the 1969 act and as such, theprayer of the petitioners for issuance of a direction to the state government to disburse their-salary cost cannot be entertained.19. it appears that section 7-c was introduced in education act, 1969 by way of amendment by the orissa education (amendment) act, 1994. the legislature in its prudence enacted the validation act, 1998 which came into force in october, 1998 i.e. after 1994. the legislature in its wisdom has incorporated section 3(2) into the validation act, 1998 which specifically stipulates that the lecturers whose appointments have been validated under the said act, shall be governed under the grant-in-aid order, 1994 for the purpose of their entitlement to receive grant-in-aid towards their salary cost. as has been discussed earlier, all the petitioners are employees of non-government educational institution it is asserted by the petitioners that they belong to category-'a-i' as defined under paragraph-4 of the 1994 order. thus, the petitioner whose service are approved under the validation act, 1998, will be eligible to receive salary cost in consonance with the grant-in-aid order, 1994. such entitlement is, however, confined to the provisions of clause-9 (b)(i) of the grant-in-aid order, 1994. in other words, a lecturer whose services have been validated in consonance with the validation act, 1998, shall be eligible to receive salary cost subject to following conditions ;(a) that the post which is held by him is admissible as per workload and yardstick prevalent prior to commencement of the amendment act. (b) that the post has been filled up prior to the date stipulated in the amendment act. (c) that it has completed the qualifying period of five years or more, or of 3 years or more in case the institution is situated in backward area. 20. it is needless to say that the aforesaid grant-in-aid order has been framed in consonance with sub-section (4) of section 7-c of the orissa education act, 1969 and the same shall regulate payment of grant-in-aid to non-government educational institutions as stipulated in section 7-c of the act. further, the grant-in-aid order, 1994 having clearly stipulated modalities for payment of salary cost to the lecturers, the so called embargo created under section 7-c of the orissa education act, 1969, in my opinion, shall not stand on the way of the petitioners, who are otherwise eligible to receive the same in consonance with section 3(2) of the 1998.validation act and the provisions of 1994 grant-in-aid order.further section 7-c(1) of the orissa education act clearly stipulates that the state government, shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to 'private educational institutions'of the state. the words 'educational institutions' in the aforesaid section are note-worthy, the legislature in its wisdom hasused the word 'institutions' and not the word 'posts'. in thepresent cases, as has been stated earlier and as submitted at the bar, all the petitioners are serving in category 'a-i' institutions as defined under the 1994 order and all the 'institutions' are receiving grant-in-aid. thus, there is absolutely no embargo in denying the petitioners whose services have been validated under the 1998 act from receiving salary components like other employees of the same institution. such interpretation would be contrary to the object sought to be achieved by the 1998 validation act. it should not be lightly assumed that the 'legislature' had given with one band what it took away with the other. even, otherwise, the 1998 validation act being a special act whichwas promulgated much after introduction of section 7-c(1), the spirit of 1998 act shall prevail upon the provisions of the general act and the latter special act will be taken to have amended the earlier general act (generalibus specialia derogant) [a.i.r. 1966 s. c. 135]. the 1998 validation act also do not refer to section 7-c(1) of the education act, which itself explicitly implies the legislative intention that the lecturers whose appointments have been validated, will be treated as employees of the institution. it is no more res integra that if a power has been given to do a certain thing in a certain way, the thing must be done in that way or not at all. in the present case, after validating the services of the lecturers in consonance with the validation act, 1998, the authorities have to act strictly in consonance with the provisions of the said act. the reference to section 7-c(1) of the education act in the impugned order is, thus, contrary to the legislative intention and would be construed to be an act in excess of the provisions of 1998 validation act.21. the conclusion arrived at by me as stated above is fortified by a decision of this court in the case of banashree mishra v. state of orissa & others (o.j.c. 8665 of 2000) wherein it has been clearly held that since the appointment of petitioners (in the said case) has been validated, the question, of payment of arrear salary automatically flows under sub-section (2) of section 3 of the validation act, 1998 and this court directed the state government to release arrear salary. the same view was also taken by a division bench, of this court (o.j.c.1393 of 1997) (smt. shruti das v. state). in the said case also after validating the appointment of lecturers under the validation act, the state government did not disburse the salary and this court directed that the petitioner is entitled to salary components and the same should be disbursed immediately. the apex court also in the case of rabinarayan mohapatra v. state, 71 (1981) c. l. t. 645 (s.c.) considering the provisions of 1989 validation act, which are in parameteria with the provisions of 1998 validation act bereft of section 3(2) categorically held that once the services of a teacher is validated, he is entitled to get all benefits whichflows from the validation act and such employees are not only entitled to get current salary, but also the arrear salary. further, the opposite parties after allowing many lecturers whose appointments have been validated under 1998 act and who are similarly placed as the petitioners, cannot deny the same privilege. such action, according to me will amount to discrimination and would violate the basic object of enacting the 1998 validation act. (see 92 (2001) c.l.t. 101 : sabita swain v. state of orissa).22. so far as payment of arrear salary is concerned, in view of the clear stipulation made in 1998 validation act, i hold that the lecturers whose appointments have been validated in consonance with the said act, would only be entitled to receive salary from october 17th, 1998 when the 1998 validation act came into force. it is needles to say that in consonance with rule 9 of the 1974 rules, the petitioners are entitled to receive current salary at par with the scale of pay received by their counter parts working in government colleges/institutions.23. before parting, i observe that in consonance with clause 12 of the grant-in-aid order, 1994, it is open for the state government to make provisions in the budget for payment of arrear salary from 17th october, 1998 till date of approval or in the alternative, pass necessary orders to cause deposit of arrear salary payable to the petitioners in the g.p.f. and/or investing the same in bonds whichever would be more convenient to the government.24. in view of the aforesaid authoritative pronouncements referred to supra both of this court and the apex court. i have no hesitation to hold that the petitioners whose appointments in the post of lecturers in category 'a-i', non-government educational institutions, have been validated in consonance with the provisions of 1998 validation act, are entitled to the benefit of grant-in-aid with regard to their salary cost in accordance with the provisions of sub-section (2) of section 3 of the 1998 validation act read with grant-in-aid order, 1994, as morefully discussed in the preceding paragraphs. they shall also be entitled to receive arrear salary with effect from the date onwhich the validation act, 1938 came into force i.e. 17-10-1998 till their date of approval or payment as the case may be. however, in consonance with clause-12 of the grant-in-aid order, 1994, the government has liberty to either make provision in the budget for payment of said arrear amount and/or pass necessary orders for investment of the same in bonds or to merge the said amount in the g.p.f. accounts whichever is more suitable to the government. before extending the benefit of 1998 validation act, it would be, however, open for the opp. parties-authorities to scrutinise and assure that the non-government educational institution where the petitioners are serving belongs to category 'a-1' as defined under the 1994 order. the entire exercise should be completed within a period of six months from the date of receipt of this order.with the aforesaid observations and directions, the writapplications are disposed of.25. writ applications disposed of