KARUNAKAR ROUT Vs. MANAGING COMMITTEE FAKIRPUR

JUDGEMENT

(1.) A teacher of an aided educational institution is the petitioner. Being aggrieved by the reduction of his monthly salary and the direction for recovery of the amount alleged to have been drawn in excess, he has approached this Court for a direction under Article 226 of the Constitution.

(2.) UNDISPUTEDLY , the petitioner, who was qualified to hold the post, was appointed as the Physical Education Teacher of Fakirpur High School on 1.10.1971 in the scale of pay of Rs. 95 -150/ - as prescribed under Article 313 of the Orissa Education Code and his initial pay was fixed at Rs. 104/ -. Taking into consideration his past experience, the Secretary of the Managing Committee of the school increased his pay to Rs. 108/ -per month on 13.1.1972, which was also within the above scale of pay. This was ratified by the Managing Committee in its resolution dated 30.1.1972. The scale of pay of a teacher of Aided Educational Institution provided in Article 313 of the Orissa Education Code which was less than the scale available to his counterpart in Government Educational Institutions was made equal with effect from 1.4.1972 in accordance with the resolution of the State Government. To that effect instructions were issued by the State Government on 21.2.1973; (See Orissa Gazette Supplement dated 9.3.1973 at page 61); which had the effect of bringing the petitioner to the scale of pay of Rs. 100 -4 -120 -5 -130 -EB -5 -155/ -. Since fixation of pay in the new scale was necessary, Rule 3 of the aforesaid resolution dated 21. 2. 1973 provided the manner of such fixation. It reads as follows : '(3) On equalisation of pay scales, the fixation of pay of teachers shall be made in the manner as indicated below : (a) Existing incumbents drawing pay in the non -Government scales at less than the minimum of the Government scale, shall be allowed to draw minimum of the corresponding time scale prescribed for Government teachers. (b) Incumbents drawing pay in the existing non -Government scale prescribed for the non -Government teachers, whose pay slab tallies with the slab of Government scale prescribed for Government teachers, shall draw as initial pay on fixation the stage of the corresponding time scale prescribed for Government teachers. If there be no such stage the stage next below that pay plus personal pay equal to the different shall be paid and this personal pay will mergein incumbent's future increments. (c) If an incumbent has already reached the maximum of the non -Government scale of pay, he will draw the next increment after completion of one year of service from the date of his pay fixation. (d) The dates of next increment in the cases of (a) and (b) will be on usual date in the Government scale of pay, i e. they will carry these old dates of increment. (e) Before coming over to Government scale of pay existing, incumbents in aided institutions will be asked to exercise an option within a period of six months. If they intend to come over to the Government scale from the 1st April, 1972 or any subsequent date. If no option is exercised within the time limit, it shall be held that they prefer Government scale. Option once exercised shall be final and it shall not be altered. (f) In respect of other cases not coming within the scope of Clauses (a), (b) and (c), the procedure prescribed in the Orissa Service Code and Rules and orders in force will apply mutatis mutandis and individual representation will be disposed of by the concerned Inspector of Schools on merits. Besides effective steps will be taken by Government to remove anomalies, etc., with regard to fixation of pay and increments, if brought to the notice of Government.' The Managing Committee taking into consideration the pay drawn by the petitioner on 1. 4. 1972 fixed his pay at Rs. 125/ - as disclosed from Annexure -5. This was checked by the Senior Auditor in the office of the Circle Inspector of Schools on 22.10.1973 and was approved by the Inspector of Schools on 26.7.1974. The scare of pay of Matriculate Physical Education Teachers was revised with effect from 1.1.1974 to Rs. 255 -5 -285 -7 -32O -EB -10 -360/ -. Accordingly, the pay of the petitioner was required to be fixed again in the revised scale of pay. This time the office of the Circle Inspector of Schools fixed the pay at Rs. 306/ - as on 1.1.1974 in Annexure -6 which was signed by the Circle Inspector on 28.2.1976. When the petitioner was continuing to receive his pay as fixed in the revised scale of pay, the Circle Inspector intimated the Managing Committee on 12.6.1978, as per Annexure -7 that the review of the fixation of pay in respect of the petitioner could not be finalised since the sanction of advance increment granted to the petitioner required approval of the Government. In the said letter, it was intimated that unless the review of the fixation of pay is obtained by the Managing Committee., the pay of the petitioner for June, 1978. would not be passed. On the same day the pay of the petitioner was fixed and the rate of deduction was also intimated in another letter and the Headmaster was directed to prepare the month wise excess or less payment since 1974, as per Annexure -12. Coming to know of the same, the petitioner submitted a representation to the Director as per Annexure -8 for approving the advance increments granted by the Managing Committee. In view of the fact that the petitioner was not getting his pay since July, 1978, he submitted a representation to the Inspector on 28.9.1978 (Annexure -9) to receive the initial pay in the scale under protest pending finalisation of the matter. After the petitioner received the protested pay for some time on 5 -12 -1978 the Inspector intimated the Headmaster of the School in Annex.ure -10 that with effect from 1.12.1978 the same would not also be allowed. On 6 -12 -1978, the Additional Director of Public Instruction (Schools) intimated the Inspector in Annexure -A to pay the salaries deducting the advance increments. So far as recoveries were concerned, it was pointed out that the State Government had been moved to clarify about the. deduction to be made. On 7 -12 -1978, by issue of Annexure -11, the Circle Inspector superseded Annexure -6 fixing the pay of the petitioner at Rs. 280/ - in place of Rs. 306/ -.

(3.) THERE is no difficulty in directing the Circle Inspector not to recover the excess payment, if any, in view of the letter No. 40077 dated 6 -12 -1978 of the Additional Director of Public Instruction (Schools), Orissa, Bhubaneswar (Annexure -A ) to the effect that: '...Clarification is being sought for from Government regarding recovery of excess amount already paid to them. The same will be communicated to you when received from Government'. The Inspector has not disclosed to this Court if he has received the communication. Accordingly, when the matter is pending consideration of the State Government, there is no scope for recovery of the alleged excess payment, if any, from the petitioner. The Circle Inspector is, therefore, directed not to take steps for recovery of any excess payment till he gets the clarification. In case recovery is attempted to be made on getting clarification, a new cause of action might arise to be agitated by the petitioner.