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PETITIONER: STATE OF ORISSA & ANR.

       Vs.

RESPONDENT: ASWINI KUMAR DASH & ORS.

DATE OF JUDGMENT:       17/03/1998

BENCH: SUJATA V.MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT: [With C.A.  No. 8257/96,  Civil  Appeal  Nos  1658-1663/1998 [Arising out  of S.L.P(C)  Nos. 13678-13681/96, 13948/96 and 24862/92], C.A. Nos. 10750-10755/96 and 12985-12989/96]                       J U D G M E N T Mrs. Sujata V. Manohar. J.      Delay condoned.      Leave granted.      The respondents  in these appeals are teachers in aided non-Government   colleges/educational   institutions.   They claimed  the  revised  scales  of  pay  recommended  by  the University Grants  Commission on  the  basis  of  Government Resolutions of  the State  of Orissa  in Education and Youth Services Department  dated 6th  of October,  1989 and 6th of November, 1990.  The respondents objected to a note attached to paragraph  2 of  the  Government  Resolution  of  6th  of November, 1990  as a  result of  which the higher pay scales were given  to full-time  teachers in  aided  non-Government colleges  which  had  received  Government  concurrence  and University affiliation  for opening  of 3 + Degree course by Ist of April, 1989 and not thereafter. The writ petitions of the respondents  were allowed  by the Orissa High Court. The High Court  struck down  the note  to  paragraph  2  of  the Government Resolution of 6th of November, 1990 and held that the respondents  were entitled  to higher scales of pay. The judgment of  the High  Court dated  4.11.1994 in  O.J.C. No. 4085-4090 of  1993 which  is  the  subject-matter  of  Civil Appeal No.8256  of 1996  has been  followed in  the impugned High Court  judgments in  the other appeals. Hence all these appeals have been heard together.      The state  of Orissa  by its  Resolution dated  6th  of October, 1989,  decided to  revise pay scales of teachers in colleges. In paragraph 2 of the Resolution it is stated that following the  appointment of  the Fourth Pay Commission for Central  Government   Employees,   the   University   Grants Commission had  appointed a Committee under the Chairmanship of Professor R.C. Meherotra to examine the present structure of the  emoluments and  conditions of  service of University and College  Teachers. After considering the recommendations of the Committee, the University Grants Commission submitted its recommendations  to the  Government of  India for  their

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consideration and  implementation. The  Government of  India communicated its  decision on  the  recommendations  of  the University Grants  Commission to  the  State  Government  of Orissa by  their letter dated 17th of June, 1987 and further clarifications on  17th September,  1987 and  22nd of  July, 1988 and  requested the State to implement the scheme in the State after  taking local  conditions into consideration. In paragraph 3  it stated  that after careful consideration the State Government has been pleased to decide to implement the scheme of revision of pay scales for college teachers on the terms and  conditions set  out in that Resolution. Paragraph 3.1 of  the Resolution  is headed "coverage". It provides as follows:-      "Coverage -  The revised scales and      other measures  for improvement  of      standards in Higher Education shall      be applicable  to all categories of      full time  Teachers working  in all      affiliated Government  Colleges and      aided    non-Government    Colleges      either covered  or eligible  to  be      covered   under    direct   payment      schemes till  the 1st  April  1989.      The scheme will also be extended to      full time eligible Teachers working      in the  College of  Accountancy and      Management Studies, Cuttack." In paragraph  3.3 pay  scales  of  different  categories  of teachers in  colleges are  laid down.  Sub-paragraph A deals with general  colleges. The  designations are  of Lecturers. Lecturers  (Senior   Scale),  Lecturers  (Selection  Grade), Reader, Professor and Principals of colleges. The Principals of colleges  are further  divided into  (i) Degree Colleges, (ii)  3  post-graduate  Colleges  and  (iii)  Lead  Colleges situated at  State and  District Headquarters  and  Colleges having post-graduate  courses as per list appended. The list appended is of degree colleges.      Thereafter by  a Government  Resolution  dated  6th  of November,  1990,   issued  by   the  Government  of  Orissa, Education & Youth Services Department, the Government issued instructions to  regulate the  revision of  scales of pay of different categories  of  teachers  serving  in  aided  non- Government colleges  of the  State pursuant  to its  earlier Resolution of  6th of  October, 1989.  Paragraph 2  of  this Resolution is as follows:-      "Category of teachers to whom these      instructions shall apply-      (1) Save  as otherwise  provided by      or   under    instructions,   these      instructions  shall  apply  to  all      categories  of  full-time  teachers      working in all aided non-Government      Colleges either covered or eligible      to be  covered under Direct payment      scheme till  the 1st  day of April,      1989.      NOTE  -   "Colleges"  under   these      instructions   shall   mean   aided      Colleges  which   have  been  given      Government which  have  been  given      Government     concurrence      and      University affiliation  for opening      of 3+  Degree courses  by  the  1st      April, 1989 and not thereafter."      Sub-paragraph  2  of  paragraph  2  excludes  from  the

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purview of  the Resolution  in clause  (v), teachers who are appointed primarily  in +2  institutions existing  as on 1st April, 1989  including Intermediate  Colleges  converted  +2 institutions and  (vi) teachers  appointed after  1st April, 1989 to  teach in  +2 courses in existing Degree Colleges or +2 institutions.      The respondents  contend that  the coverage  which  was given to  the earlier  Resolution of 6th of October, 1989 is reduced as  a result  of  the  note  which  is  appended  to paragraph 2  (1) of the Resolution of 6th of November, 1990. However, under  paragraph 3.1  of the  Resolution of  6th of October,  1989   which  deals  with  the  coverage  of  that Resolution, it  is stated  that the Resolution will apply to full-time teachers  working, inter  alia, in  all affiliated aided non-Government  colleges either covered or eligible to covered under  direct payment  schemes till  1st  of  April, 1989. The term ’affiliated’ in paragraph 3.1 has a reference to the  Orissa Universities  Act, 1989 which came into force on 15th  of November,  1988.  Section  2(b)  of  the  Orissa Universities Act,  1989 defines  affiliated institutions  to mean a  college or an institution affiliated to a University whether in  whole or  in part.  While the  term ‘college’ is defined in Section 2(d) to mean an institution admitted to a University in accordance with the provisions of this Act and the statutes and includes a college managed by a University, but does  not include  a school whether it is an independent institution or  forms part  of a  college as defined herein. The Resolution  of 6th  of October, 1989, therefore, applied to those aided non-Government colleges which were affiliated to a University.      The reference  in paragraph  3.1 to colleges covered or eligible to be covered under direct payment schemes till 1st of April,  1989  has  a  reference  to  the  scheme  of  the Government of  Orissa for  direct payment  of salary  by the Government to  the teaching  and non-teaching staff of aided colleges. The  circular  letter/order  of  27.5.1978  covers those who  have been  appointed against sanctioned posts and have completed  five years  from the date of the creation of such posts  provided the  creation of  such  posts  and  the appointments made  against them  have been duly  approved by the competent  authority. By a circular letter dated 17th of March, 1983,  the Government  of Orissa, Education and Youth Services Department,  had clarified the Government Order No. 19462-EYS dated  27.5.1978 to the effect that direct payment of full  salary cost  of the teaching and non-teaching staff of non-Government  colleges as  admissible according  to the prescribed yardstick shall be payable to such colleges which have been  accorded  Government  concurrence  prior  to  the academic session  1979-1980. The  colleges who have received Government concurrence with effect from the academic session 1979-1980 or  thereafter shall be governed by the new grant- in-aid principles which were as follows:- (1)  Colleges in advance areas will receive 1/3rd of the      deficit as grant-in-aid after 5 years from the date of      Government concurrence (recognition), 2/3rd after 7      years and full deficit after 9 years. (2)  In backward areas these periods will be 3, 5 and 7      years respectively. For the  purpose of  computing qualifying  period of 5 years for a  college to receive grant-in-aid the date which effect from  which   the  college   has  been  accorded  Government concurrence shall  be taken  into account.  This concurrence has a reference to Section 18(b) of Orissa Universities Act, 1989,  Section   18  deals  with  admission  of  educational institutions as  colleges i.e.  institutions admitted  to  a

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University (vide  definition Section  2(d). Sub-section  (1) provides that  no educational  institution shall be admitted as college  unless the  following  conditions  are  complied with,  namely,  (a)  it  is  a  college  recognised  by  the Government  as   such,  imparting   higher  education,   (b) concurrence of  the Government  to  the  proposal  has  been obtained. Thee  are other  conditions with  which we are not concerned.      Paragraph 3.1,  therefore, refers  to only  those aided non-Government colleges which are affiliated to a University and are  eligible to be covered under direct payment schemes which also  have a  reference to  colleges being admitted to University,  prior   to  1st   of  April,  1989.  Under  the Resolution of  6th of October, 1989, "plus two" institutions or Intermediate  colleges were  not to  be covered;  as also those Degree  colleges which  obtained  affiliation  to  the University after 1st of April, 1989.      The Resolution  of 6th  of November,  1990 which  deals with teachers  serving in  aided non-Government  colleges of the State  provides in  paragraph 2 that the instructions in that Resolution  shall apply  to all categories of full-time teachers working in all aided non-Government colleges either covered or  eligible to  be  covered  under  direct  payment scheme till  1st of April, 1989. This language is similar to the language  in paragraph  3.1 of  the Resolution of 6th of October, 1989.  The note  states that  colleges  shall  mean aided colleges  which have been given Government concurrence and University  affiliation for  opening 3+  Degree  courses from 1st  of April, 1989 and not thereafter. In view of what has been  said in  paragraph 3.1  of the  Resolution of  6th October,  1989   as  explained  above,  the  note  sets  out specifically  what  is  implied  in  paragraph  3.1  of  the Resolution of  6th of  October, 1989, as also paragraph 2(1) of the  Resolution of  6th of  November, 1990 since both are couched in  similar language.  Sub-paragraphs 2 (v) and (vi) are also  clarifacatory in  this context.  The Resolution of 6th of November, 1990 therefore, cannot be challenged on the ground that  it deprives  the teachers of +2 institutions or Intermediate colleges  of the  benefit of  the Resolution of 6th of  October, 1989  even though  their colleges  may have received affiliation for Degree courses subsequent to 1st of April, 1989.   Neither  of the two Resolutions intended such colleges to  have the  benefit of  revised pay  scales under those Resolutions.      In this  context our  attention was also invited to the Orissa Education  Act, 1969 as amended with effect from 21st of August,  1989.  Section 3(b) defines an aided educational institution to  mean a private educational institution which is recognised  by  and  is  receiving  aid  from  the  State Government.  A college is defined under Section 3(d) to mean an educational  institution imparting instructions in higher general education  leading to any degree conferred by any of the Universities  established under  the Orissa Universities Act, 1989.   Therefore,  an aided  college  even  under  the Orissa  Education   Act  will   be  an   institution   where instructions  in  higher  general  education  leading  to  a University degree  is imparted.   For  this purpose,  such a college requires  to be affiliated to a University under the Orissa Universities Act, 1989.  Section 7-D provides that no private  educational   institution  which   has   not   been recognised by  the State  Government under this Act shall be entitled  to  be  recognised  by  any  of  the  Universities established under  the Orissa  Universities Act,  1989 or to receive any  aid from the State Government.  Therefore, even under the  Orissa Education Act which covers all educational

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institutions  including   colleges,  the   colleges  require recognition under  the Orissa Education Act.  In order to be eligible to  send up  its students for a degree they require affiliation to  a University  under the  Orissa Universities Act  and  for  the  purposes  of  grant-in-aid  the  private colleges require  recognition by  the State Government under the Orissa  Education Act.   Although direct payment schemes may  apply  not  merely  to  Degree  college  but  to  other educational  institutions   including  Intermediate  college which do  not require  any affiliation  to a University, the Resolution of  6th of  October, 1989 in paragraph 3.1 refers expressly to  affiliated colleges.   This  affiliation has a reference to  affiliation  to  a  University  for  a  Degree course.   In respect  of such  colleges, the  direct payment scheme requires  that the  colleges should  have concurrence from the  Government and University affiliation.  Therefore, these  two   Resolutions  cover   the  same  field  and  the Resolution of  6th November, 1990 does not curtail the scope of the Resolution of 6th of October, 1989.      It is  next contended  by the respondents that the cut- off date  of 1st  of April,  1989 prescribed  in  these  two Resolutions is  arbitrary and  irrational.   It has deprived teaches of  aided non-Government colleges who wee affiliated after 1st  of April,  1989  from  the  benefit  of  the  two Resolutions.   In the  case of  some of the teachers who are before us, the college in which they are working had applied for affiliation  prior to  1st of  April, 1989  but received affiliation at a later date.  In case of other colleges, the application for  affiliation as well as affiliation are from a later  date.  The respondents contend that at least in the case  of  those  colleges  which  has  already  applied  for affiliation prior to 1st of April, 1989, the teachers should get the  benefit of  revised U.G.C.  scales  under  the  two Resolutions.   They rely  upon a clarification issued by the Government of  Orissa, Education Department, dated 22.8.1991 in respect  of the Resolution of 6th of November, 1990 where it is stated that the revised U.G.C. scales of pay 1986 will be applicable  to the teachers of a Degree college which has received Government  concurrence and  University affiliation by 1st  of April,  1989, irrespective  of whether it has got temporary/provisional/permanent     concurrence/affiliation. The clarification,  however, cannot apply to a college which has merely  applied for affiliation but has not received any kind of affiliation by 1st of April, 1989.      The only  other contention relates to the arbitrariness of the cut-off date 1st of April, 1989.  In this connection, the appellants  have pointed  out that  the Resolutions deal with the  quantum  of  grant-in-aid  which  the  State  will provide, inter  alia, to  aided non-Government colleges; and the basis  on which such grant-in-aid will be provided.  For this purpose  the state  will provide  for revised scales of pay   as    per   the    University   Grants    Commission’s recommendation.   The State  Government has  framed a scheme for such grant-in-aid looking to its own financial resources and the  number of educational institutions to which it will be required  to give  such grant.   No education institution can claim  grant-in-aid as  a matter  of right.   This  is a matter of  policy which  the State  Government  will  decide looking  to   its  financial  capacity  and  other  relevant circumstances.   There may  be, as  a result, differences in the pay  scales of  teachers of colleges affiliated prior to 1.4.1989  and  colleges  affiliated  subsequently,  although neither of  the Resolutions prevent the colleges from giving higher pay  scales if  they so desire.  In this context, the appellants have  pointed out  that even the extent of grant-

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in-aid  varies  from  college  to  college,  depending,  for example, upon the number of years for which the  college has been functioning.   Since  the entire  burden  of  providing grant-in-aid is  now on  the State,  the State  regulates by policy the  extent of  aid and the colleges to which it will be given.      In the  present   case the State Government has decided to provide  grants-in-aid to cover the revised U.G.C. scales of pay  for those  teachers in  existing colleges which have received Government  concurrence and  University affiliation on or  before 1st  of April,  1989.   The date  has a direct nexus with  the date  of the  decision to  provide for  such higher pay  scales in  the grant-in-aid  to be  given to the concerned colleges.   The  date which  is so fixed cannot be considered as  arbitrary or  unreasonable.   Colleges  which have secured  Government concurrence or affiliation from the University after 1st of April, 1989, therefore, cannot claim any right  to the higher grant-in-aid contrary to the policy as laid  down by  the state.  The High Court was, therefore, not right  in coming  to the  conclusion that  the  Note  to paragraph 2(1)  of  the  Government  Resolution  of  6th  of November, 1990, was arbitrary and unreasonable.      The appeals  are, therefore,  allowed.    The  impugned judgments and orders of the High Court are set aside and the writ petitions  filed by  the respondents  before  the  High Court are dismissed.  There will, however, be no order as to costs.