JUDGMENT
M.M. Das, J.
1. The petitioners in this writ application are all lecturers in aided colleges who were selected by the Service Selection Board and appointed as such in various colleges allotted by the Director of Higher Education, Orissa, Bhubaneswar. Their appointments have been approved by the Director and they are receiving their salary under the direct payment scheme from the Government. The grievance of the petitioners is that although the dearness allowance at the rate of 64% of the basic pay is being given to the lecturers of Government colleges, a discrimination is being made as the petitioners have been paid dearness allowance at the rate of 41% of their basic pay.
2. It is the case of the petitioners that prior to 1.1.2001, the percentage of dearness allowance paid to the petitioners as well as the lecturers in Government colleges was same. But from 1.1.2001 onwards, dearness allowance at a higher rate was paid to the State Government employees including the lecturers of Government colleges as per the Finance Department memorandum dated 6.5.2005. The rate of dearness allowance from 1.1.2001 was at 43% which was increased to 45% from 1.7.2001, 49% from 1.1.2002, 52% from 1.7.2002, 55% from 1.1.2003, 59% from 1.7.2003,61 % from 1.1.2004 and 64% from 1.7.2004. Such increase of percentage of dearness allowance has not been made in case of lecturers of the aided colleges like the petitioners in spite of the mandate of Rule 9 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided, Educational Institutions) Rules, 1974 (for short, ‘the Rules’).
3. On the above basis, the petitioners have prayed for issuance of a Rule Nisi and thereupon a writ in the nature of mandamus directing the opp. parties to pay dearness allowance to the petitioners at the same rate with effect from 1.1.2001 onwards at which, such dearness allowance is being paid to the lecturers working in the Government colleges, within a stipulated period.
4. A counter affidavit has been filed by the opp. party No. taking a stand that since the method of selection of lecturers working in the Government colleges and lecturers working in aided colleges are different, the petitioners cannot claim as of right to receive dearness allowance at the same rate as is being paid to the lecturers of Government colleges. A further stand has been taken that in view of Section 7-C of the Orissa Education Act, 1969 coupled with the financial stringency faced by the State, it is not possible on the part of the State to pay dearness allowance to the lecturers of aided colleges at a higher rate.
5. It is naive to state that law has been well settled in various decisions of this Court that Rule 9 of the Rules is mandatory in nature. (See Smt. Kamala Behera v. State of Orissa and Ors. 76 (1993) CLT 1035). The relevant portion of Rule 9 of the Rules reads as follows:
9. Drawal of pay and allowances by employees of Aided Institutions-(1) Every employee of an Aided Educational Institution shall draw the same pay, dearness allowance and subsistence allowance in case of suspension as is admissible to courterpart 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 authorized by Government.
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6. Applying the law as laid down by this Court in the aforementioned cases, it would be apt to hold that the opp. parties cannot treat the lecturers of aided educational institutions as a separate “class” from lecturers in Government colleges. The mandate of Rule 9 clearly prescribes that such lecturers of aided educational institutions shall draw the same pay, dearness allowance and subsistence allowance, in case of suspension, as is admissible to their counterparts in the Government educational institutions.
7. Section 7-C of the Orissa Education Act, 1969 relates to providing grant-in-aid to private educational institution in the State. It prescribes 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 in the State. It is, therefore, clear that the said Section 7-C of the Orissa Education Act relates to providing grant-in-aid and has no nexus with regard to payment of allowances like dearness allowance. This Court is, therefore, of the view that the Opp. Parties cannot take any aid from the provisions of Section 7-C of the Orissa Education Act in the present case, which relates to payment of dearness allowance.
8. With regard to the question of financial stringency of the State, it would be apt to refer to the decision rendered by the Apex Court in the case of The Chandigarh Administration and Ors. v. Mrs. Rajni Vali and Ors. . The Supreme Court in the said case categorically held that the State Administration cannot shirk its responsibility in ensuring proper education in schools and colleges on the plea of lack of resources. It further held that it is for the authorities running the administration to find out the ways and means of securing funds for the purpose.
9. In view of the above, this Court is constrained to hold that the Opp. Parties cannot deny payment of dearness allowance to the lecturers of aided educational institutions like the Petitioners at the rate than at which, such allowance is being paid to their counterparts in Government colleges. In view of the provisions of Rule 9 of the Rules, they cannot refrain from making such payment on the ground of paucity of funds.
10. Taking into consideration the above aspects, while accepting the contention of the petitioners, this Court directs the Opp. Parties to pay dearness allowance to the petitioners at the rates at which it is being paid to the lecturers in Government colleges with effect from 1.1.2001
11. The arrear amount of dearness allowance payable to the petitioners from 1.1.2001 shall be paid to them within a period of 3 months from the date of communication of this order and the Opp. Parties shall continue to pay the dearness allowance to the Petitioners at the same rate as is being paid to their counterparts in Government colleges.
12. The writ application is accordingly allowed, but in the circumstances, without cost.