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Prabira Kumar Biswal & Ors vs Unknown on 16 September, 2010

Orissa High Court
Prabira Kumar Biswal & Ors vs Unknown on 16 September, 2010
                              B.P.DAS, J & S.PANDA, J.

O.J.C. NO.10096 OF 2001 (Decided on 16.09.2010)
PRABIRA KUMAR BISWAL & ORS. ……… Petitioners.

.Vrs.

STATE OF ORISSA & ORS. ……… Opp.Parties.

ORISSA EDUCATION ACT, 1969 (ACT NO. 15 OF 1969) – SEC.24-B.
For Petitioners – M/s. B.Routray, d.K.Mohapatra, B.Rout,
A.K.Baral, P.K.Dash, B.B.Routray &
D.Mohapatra.

For Opp.Parties – Mr.J.P.Pattnaik,
Learned Additional Government.

B. P. DAS, J. The petitioners, who are the teaching staff of the School for the
Deaf located at Sunabeda in the district of Koraput, have filed this writ application
challenging the order dated 25.7.2001 passed by the District Social Welfare Officer,
Koraput, O.P.4, in Annexure-10 intimating them that in response to the order dated
19.9.2000 passed by this Court in O.J.C. No.7823/2000 and in view of the reduction
of budgetary provision, the Government in Women and Child Development
Department has been pleased to decide not to allow the benefits of the O.R.S.P.
Rules, 1996 (Orissa Revised Scales of Pay Rules, 1996) in favour of teaching staff
of special schools.

2. The brief facts leading to this writ application tend to reveal that the school in
which the petitioners were appointed was established in the year 1986 by the Red
Cross Rotary Society, Koraput, which is a voluntary Organization and established
the school for imparting education to the handicapped children. The State
Government in Community Development & Rural Reconstruction Department after
careful consideration of the financial assistance provided to the voluntary
organizations for maintaining the special schools imparting education to blind, deaf
and dumb and mentally handicapped children in the State, framed a set of rules
called “Rules Governing Grant-in-Aid to Institutions Imparting to Handicapped
Children’s” (herein after called, “the GIA Rules”) and notified the same by the
resolution dated 31.12.1985, vide Annexure-1. Rule-5 of the said GIA Rules dealing
with the scale of GIA provides as follows :-

“5. Scale of Grant-in-aid-(I) Unless revised by Government, the grant-in-aid
payable to an institution shall be calculated at the following rates per month per
student :

Residential Institutions

High School Elementary/
2

Middle School
Rs. Rs.

Food 90 90
Bedding, Clothes, Soap, Oil, etc. 15 15

Educational Expenses (both
general education & vocational
education, and including teachers’
salaries) 30 15

——————————————-

Total 175 160

—————————————–

Non-Residential Institutions

Educational Expenses 15
Conveyance Expenses (of students only) 20
Contingencies 40

———————–

Total 75

———————–

NOTES-(i) The scale of expenditure indicated above be varied for any item by
the Management, but any increase on any item shall not entitle it to an additional
grant from the Government. The provision on food, however, shall not be
reduced under any circumstance.

(ii) If any other contribution is received, its receipt and utilization shall be fully
accounted for.

(2) Residential institutions receiving grant-in-aid for the first time will also receive
a grant calculated at the rate of Rs.300 (Rupees three hundred) only per student
towards the cost of furniture to be used by students. This grant will be given
once for all and is not renewable from year to year except for new students who
may have been admitted since the last grant was given.

(3) The grant-in-aid admissible according to the above scale may be reduced on
account of shortage of budget provision or existence of any other ground
justifying reduction.

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(4) Notwithstanding anything in the foregoing sub-rules and subject to availability
of funds, Government shall be competent to sanction a special grant to any
institution to meet an expenditure of emergent or non-recurring nature.

(5) In the event of receipt of any assistance from the Government of India, the
assistance shall be utilized strictly for the purpose for which it is provided and in
the manner indicated by the Government of India and the State Government.”

As there was no provision in the GIA Rules in regard to the recruitment of teachers
and their scales of pay, etc., the State Government by resolution dated 28.12.1987
(Anneure-2) made certain amendments. By the said amendment, a new Rule 5-A
was inserted. Sub-Rule (1) of Rule-5-A provides that the teachers of the institutions
shall be paid salary at rates applicable to teachers of comparable rank and
qualification in Government schools subject to their possessing the qualifications
prescribed for the posts.

Thereafter, the management of the petitioners’ institution submitted necessary
proposal to the State Government for approval of their appointment and release of
salary. The Deputy Director-cum-Deputy Secretary to Government in Panchayat Raj
Department by letter dated 26.2.1991 (Annexure-7) conveyed approval of the
Director, Social Welfare, to the appointment of the petitioners against the posts
noted therein for payment of salary at Government scales of pay with the stipulation
that the approved staff would receive Government scales of pay subject to the
conditions, if any, as noted against each from the date of their joining as entitled
under the rules. The names of the petitioners find place in Annexure-7 as well as in
the order of approval dated 16.7.1992 communicated to petitioners’ institution in
Annexure-8. With the passage of time, the State Government also extended the
benefit of revised scales of pay from time to time as per the Orissa Revised Scales
of Pay Rules meant for the Government employees, which means the State
Government decided to allow the Revised Scales of Pay to the staff of the
petitioners’ institution and similar institutions run by the voluntary organizations in
the State, as reflected in the resolution dated 18th December, 1992 passed by the
Government of Orissa in Panchayat Raj Department, vide Annexure-9. Despite
repeated representations, when the petitioners did not get the benefit of ORSP
Rules,1996 in terms of Rule-5-A(I) of the G.I.A. Rules, finding no other alternative
they filed a writ application being O.J.C. 7823/2003 before this Court, which was
disposed of by order dated 19.9.2000 directing the State Government to consider
the claim of the petitioners for payment of salary in the revised scale of pay as per
the Orissa Revised Scales of Pay Rules, 1996 and in the event it is found that the
petitioners are entitled to the revision of scales of pay, the differential amount would
be paid within six months from the date of communication of that order. When the
aforesaid order dated 19.9.2000 was not complied with, the petitioners filed a
contempt petition bearing Crl.Misc. Case No.269/2001 and this Court passed the
following orders, relevant portion of which is reproduced herein below :-

“It is most unfortunate that the order dated 19.9.2000 passed by this Court in
O.J.C. No.7823/2000 has not been complied with by the opp. Parties for long time.
However, as a last chance we grant eight weeks’ time to the opp. parties to
4

comply with aforesaid order of this Court, if not already complied with, failing which
it will be seriously viewed.”

Thereafter, the District Social Welfare Officer, Koraput, by letter dated 25.7.2001
(Annexure-10) intimated the petitioners the decision of the State Government in
Women & Child Development Department not to allow the benefits of the O.R.S.P.
Rules, 1996 to the teaching staff of the Special Schools, vide Annexure-10. The said
order, as stated above, challenged in this writ petition is extracted hereunder :-

“I am to say that in response to the Order No.2 dt.19.9.2000 of High
Court in the O.J.C. No.7823/2000 and in view of the reduction of Budgetary
Provision Government in Woman and Child Development Department has
been pleased to decide not to allow the O.R.S.P. Rules, 1996 in favour of
teaching staff of special schools.”

According to Mr.B.Routray, learned counsel for the petitioners, the
impugned order dated 25.7.2001 in Annexure-10 has been passed not only to
deprive the petitioners from getting the benefit, which has been extended by the
Government, but also to nullify the order dated 19.9.2000 passed by this Court in
O.J.C. No.7823/2000. That apart, no reason has been assigned as to why they will
be deprived of such benefit when at various stages, the Government found that the
petitioners were entitled to get such benefits in terms of Rule 5-A of the Rules and
the case of the petitioners was also considered and they were found eligible to get
such benefits.

A counter affidavit has been filed on behalf of O.P.1-Secretary to Government,
Women and Child Development Department, basing upon which learned counsel for
the State submits that as the petitioners are neither Government servants nor are
they serving in an aided education institutions or are entitled to get the benefit of the
Orissa Revised Scales of Pay Rules, 1996, the writ petition is devoid of any merit.
Apart from that, the order dated 25.7.2001 under Annexure-10 refusing to grant the
benefit of Revised Scales of Pay to the petitioners was due to reduction of budgetary
provision and therefore, it is not at all possible on the part of O.P.1 to pay the
Revised Scales of Pay to the teachers of the Special Schools managed by the Non-
Governmental Organisations and therefore, there is no illegality or irregularity in the
impugned order in Annexure-10. In this regard, our attention is drawn to paragraph-8
of the counter affidavit wherein in reply to the averments made in paragraphs-6, 7 &
8 of the writ petition, it is stated that the Government has nothing to comment.
Paragraphs-6, 7 & 8 of the writ petition deal with the amendment of the Rules
and insertion of Rule 5-A. Apart from the aforesaid limited objection, as projected in
the counter affidavit, learned counsel for the State further submits that the school, in
which the petitioners are working, is run by the Red Cross Society, which is a
voluntary organization, and once the revised scale of pay is released, the same will
go to the coffers of the said voluntary organisation, which is also getting aid from the
Central and State Governments and other source will only enrich it.
As regards the above objection raised by the learned counsel for the State, we
may say that the apprehension of the learned counsel for the State is borne out from
5

the record and cannot be accepted as the State Government took a conscious
decision to extend the benefit of revised scales of pay to the petitioners like that of
the teaching and non-teaching staff working in Government Schools, the intention of
the State is only clear, i.e., to give the benefit to the teachers of comparable rank in
these types of institutions. The State Government has also created a mechanism,
which works to check the misutilisation of financial aid given by the State
Government to the institutions in question. Sub-Rule 3(i) & (v) of Rule 5-A of the
G.I.A. Rules, which was introduced by the amendment made by the Resolution
under Annexure-2, which provides as follows :-

“3. The Management shall be eligible to receive grant-in-aid from
Government to meet the expenses on account of salaries of teachers subject to
the following conditions :-

(i) That the list of teachers and the scales of pay in respect of each has
been approved by the Government.

(v) That the assistance may be reduced or revised, if the voluntary
organization receives any assistance for the same purpose from the
Government of India or any other source.”

Hence, the apprehension of the learned counsel for the State that the aid from the
State Government would enrich the N.G.Os., is unfounded.
This being the position, let us now see, what is the effect of Annexure-5, i.e., the
communication dated 28.6.1991 issued by the Deputy Director-cum-Deputy
Secretary to Government, Panchayati Raj Department. It cannot be strictly
construed to be a denial of giving the Revised Scales of Pay to the petitioners. It is
only a postponement of the same because of reduction in budgetary provision, as it
prevailed during the year 2001. The scenario of the State Government has been
changed now in 2010. It is further submitted by Mr. Routray that in the meantime,
the petitioners have also got the benefit of 5 & 6 revised scale of pay on the latter
date. This shows that the postponement is a temporary one and due to the
circumstances that prevailed when the impugned order dated 25.7.2001 under
Annexure-10 was passed. Our attention is drawn to a decision of this Court
rendered in Prafulla Kumar Sahoo vrs. State of Orissa and others reported in
2003 (I) OLR-91 wherein interpreting Section 7-C of the Orissa Education Act, this
Court passed the following orders :-

“………..The aforesaid circular of the Finance Department is the basis of
the decision in the impugned order dated 9.8.2000 of the Government of Orissa,
Department of Higher Education rejecting the case of the petitioner for approval
and grant-in-aid was would be clear from the very language of the impugned
order dated 9.8.2000 quoted above. As the Finance Department, Government of
Orissa, had no jurisdiction to impose restrictions by an executive order on the
claim of any educational institution or any member of its teaching or non-
teaching staff to grant-in-aid, the impugned order dated 9.8.2000 of the
Government of Orissa, Higher Education Department which is based on such
executive order of the Finance Department,
6

Government of Orissa is ultra vires Sub-section (4) of Section 7-C of the Orissa
Education Act and the Grant-in-Aid Order, 1994 and is also without jurisdiction
and is liable to be quashed….”

Considering all these aspects and the provisions made in Rule 5-A which was
brought under the amendment made in the resolution dated 31st December, 1985
Governing Grant-in-aid to Institutions Imparting Education to Handicapped Children,
we do not get any substance in the allegation of the petitioners that the State
Government is intentionally going to deprive the petitioners from getting the revised
scales of pay, 1996. However, considering all those aspects and taking into
consideration the objection raised, we find that there is a provision in the G.I.A.
Rules to take care of such eventuality. Accordingly, we allow this writ petition and
set aside the order dated 25.7.2001 passed by the District Social Welfare Officer,
Koraput, O.P.4 and direct the State Government to extend the benefit of revised
scale of pay, 1996, as applicable to the teachers of comparable rank in Government
Schools with effect from the date the O.R.S.P. Rules came into force within a period
of six months from the date of communication of this judgment. There will be no
order as to cost.

Writ petition allowed.

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