CHINMAYA MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in the present writ application, who was working as a Demonstrator in the Department of Chemistry in Paradeep College, Paradeep prays for issuance of writ of mandamus directing opposite party No.3 : (i) to release his arrear incremental dues, sanctioned in his favour from the year 1994 to 1997 (ii) to fix his pay suitably when his post was put to the grant -in -aid scale taking into account the last pay drawn by him (iii) to sanction his incremental dues in the scale of pay prescribed for the post of Demonstrator from 1998 onwards and to pay the petitioner his arrear dues within a stipulated period as deemed fit; and (iv) to direct opposite parties 1 and 2 to release 1/3rd salary component of the petitioner with effect from 25.11.1998, 2/3rd salary component with effect from 25.11.2000 and full salary cost with effect from 25.11.2002.

(2.) THE brief facts leading to filing of this writ application are that the post in which the petitioner was appointed was created by the State Government during the academic session 1992 -93, vide Government Order No.59612 dated 17.12.1992. In the said order, it was stated, in place of the Demonstrator of Chemistry Department, Demonstrator of Physics Department was mentioned which was subsequently corrected by opposite party No.1 as per his communication to the management of the College, vide Memo No.55451 dated 23.11.1993 (Annexure -2). According to the petitioner , his appointment in the opposite party No.3 -College was against a sanctioned post, created by the State Government and since the date of his joining, the petitioner was discharging his duties to the best satisfaction of the authorities. The appointment of the petitioner was approved by the opposite party No.2, vide Memo No.731 dated 2.8.1994. According to the petitioner as per the grant -in -aid principles, a post in an aided institution becomes eligible to grant -in -aid at the rate of 1/3rd of the salary cost after five years of its creation, 2/3rd after seven years and full salary cost after nine years of the creation. The petitioner contends that since his post was created in the year 1992 -93 session, he was eligible to receive grant -in -aid at the rate of 1/3rd of his salary component from 1.6.1998, 2/3rd from 1.6.2000 and full salary cost from 1.6.2002. According to the petitioner, he was paid his salary component from the date of his joining the college and his first annual increment was due in the year 1994. The petitioner was paid his increments in the time scale of pay of Rs.1400 -2600/ - for the years 1994 to 1997. According to the petitioner, Annexures -4 and 5 clearly show that though he was granted his annual increments during the years 1994 to 1996, no arrear was granted to him but his pay was notionally fixed enhancing the same from Rs.1400/ - to Rs.1520/ - as on 1.11.1996 and thereafter from Rs.1520/ to Rs.1560/ - with effect from 1.11.1997. The further case of the petitioner is that his increments which were due on 1.11.1998, 1.11.1999 and 1.11.2000 were not sanctioned although the same were normally to be sanctioned in his favour. It is averred in the writ application that an office order was passed and communicated to the petitioner by the Principal of opposite party No.3 - College, vide Annexure -6 indicating that since the employees (including the petitioner) mentioned therein were due to get their salary component from the State Government, they were not entitled to get their annual increments until they were approved for direct payment of salary cost by Government under the grant -in -aid principles, for which the proposal had been made.

(3.) A counter affidavit has been filed by the State Government, wherein a stand was taken that the petitioners post was approved by the competent authority on 25.7.1994, i.e. after the academic session 1993 -94. Therefore, the petitioner is not eligible for grant -in -aid as the Government has not considered the case of such persons who are eligible to receive grant -in -aid beyond 1.6.1994 after introduction of the Orissa Education (Amendment) Act, 1994. The further case of the State is that because of the provisions of Section 7 -C of the Orissa Education Act and as there is paucity of funds, the petitioner is not to get his salary component at present. Further the counter affidavit discloses that the post in question was a management post which had been created in the academic session 1992 -93 and the service of the petitioner for the purpose of grant -in -aid was to be reckoned from 1.6.1994, i.e., from the beginning of the next academic session. Therefore, the petitioner is entitled to grant -in -aid from 1.6.1999. But the financial concurrence has not been accorded to the post of the petitioner by the Government till date. Further the State Government has not taken any decision after 1.6.1994 for release of grant -in -aid in favour of the employees of non -Government colleges of the State, those who have become eligible to receive grant -in -aid. It has not been done due to the financial constraint of the Government and thousands of teaching and non -teaching staff of non -Government colleges are waiting to receive grant -in -aid. Since it is a policy matter, the Government is yet to take decision in the matter and the petitioner has to wait. It is further stated in the counter that the claim of the petitioner for release of grant -in -aid can only be considered when the State Government takes a decision for releasing grant -in -aid in favour of the employees of non -Government Aided Colleges of the State approved after 1.6.1994.