RABINARAYAN DASH Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) By this application under Article 226 of the Constitution of India, the petitioner has prayed, inter alia, for a direction to the opposite parties to accord pay protection following his transfer to Nampo High School, Nampo in the district of Balasore.

(2.) Bereft of unnecessary details, the short facts of the case of the petitioner are that Gandhinagar Uccha Bidyapitha, Salangipada in the district of Kalahandi is an aided educational institution within the meaning and ambit of the Orissa Education Act, 1969 and Rules framed thereunder. The petitioner was appointed as a Trained Graduate Teacher in the said school. His service was approved by the educational authorities. Since his place of service is 600 kms. from his village Chadheya, he made a representation to the Director, Secondary Education, Orissa, opposite party no.2, to transfer him from Gandhinagar Uchha Bidyapitha to any other aided educational institution in the district of Bhadrak/Balasore. By office letter No.30962 dated 15.9.1990, he was transferred to Nampo High School, Nampo in the district of Balasore, vide Annexure -1. Opposite party no.2 directed to adjust the petitioner against the vacant trained graduate post as a fresh candidate as per the undertaking given by him and his seniority in the previous school will not be taken into account. But then, his past services shall be taken into account for the pensionary benefits. Pursuant to the order of transfer, he joined as a Trained Graduate Teacher in Nampo High School on 20.11.1990 and discharged his duties to the utmost satisfaction of the authority concerned. After transfer, no pay protection was given to him. He was paid at the initial scale of pay of Trained Graduate Teacher. He filed a representation on 10.11.1994 to the Inspectors of Schools, opposite party no.3, to give him pay protection, vide Annexure -4. Though the Headmaster of the School submitted the records before opposite party no.3 on 6.11.1996, vide Annexure -7, but no action has been taken till yet. With this factual scenario, this writ petition has been filed.

(3.) Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties. The sum and substance of the case of the opposite parties is that the petitioner was adjusted in Nampo High School with effect from 20.11.1990 vide letter no.222 dated 5.1.1991. While adjusting him in Balasore district, certain conditions were imposed that he will forgo his past services and seniority and his appointment will be treated as a fresh one. He will draw the salary in the initial scale of pay. But his past services shall be taken into account towards pensionary benefits. Further, the Government of Orissa in the Department of School and Mass Education vide order No.28089 dated 23.9.1993 issued instruction to allow pay protection to the employees of non -Govt. High School in case of transfer. When the petitioner was transferred and adjusted, there was no instruction with regard to pay protection of the employees of Non -Government High School. The order of the Government is perspective. In OJC No.17201 of 1997 filed by one Harihar Tripathy, this Court directed the Director of Secondary Education, Orissa, opposite party no.2, to consider the claim of the petitioner therein regarding protection of the scale of pay. The matter is pending before the opposite party no.2. Unless and until instruction is received from opposite party no.2 to give pay protection to the petitioner, it is not possible on the part of the opposite party no.3 to take a decision in the matter.