JUDGMENT :

D.P. Choudhury, J.

Challenge has been made to the inaction of the opposite parties by not granting service and pensionary benefits at par with Government teachers to the petitioner and similarly situated persons.

FACTS

2. The conspectus of the case of the petitioners is that the petitioner No.2 is a retired High School Teacher from the School of Urban Local Bodies. Be it stated that on 26.9.1989 the State Government passed a resolution declaring Non-Government Primary School Teachers of the State as Government employees with effect from 5.9.1989 and such benefit was also available to the Primary School Teachers in N.A.C./Municipal areas in the State. Vide Notification No.496 dated 18.4.1990 the Orissa Aided Educational Institutions (Non-Government Fully Aided Primary School Teachers) Retirement Benefit Rules, 1986 was amended stating that the Non-Government Fully Aided Primary School Teachers either working in the Panchayat Samiti constituted under the Orissa Panchayat Samiti Act, 1959 or a Municipality or Notified Area Council constituted under the Orissa Municipal Act, 1950 are governed by the said Retirement Benefit Rules, 1986.

3. In Rule 215 (c) of the Orissa Municipal Rules, 1953 it has been stated that “School under public management” means that recognized School which is managed by the Department, or by any Local Authority or by any special persons or committees appointed and action taken on behalf of the State Government. So, the teachers under the Urban Local Bodies both working and retired should be treated at par with their counterparts in the State Government. Similarly Rule 433 of the said Municipal Rules states that Municipal employees shall be subject to the same rules of conduct as applied to Government servant. It is alleged, inter alia, that in order to give all benefits to the Government employees a Cabinet decision was taken on 5.2.2004 that the teachers of 65 Lower Secondary (M.E.) and 82 Secondary Schools of Urban Local Bodies are declared as Government employees retrospectively with effect from 1.8.2002. After the Cabinet took a decision, the Government vide letter No.4036 dated 20.2.2004 in Housing and Urban Development Department clarified that the Government after careful consideration have been pleased to transfer the Management of 82 Secondary Schools of all Urban Local Bodies to the School and Mass Education Department and to declare the teaching and non-teaching staff of those Schools as Government servants with effect from 1.8.2002.

4. Again on 28.2.2004 a resolution of the Housing & Urban Development Department was duly published in the official gazette that 82 Secondary Schools of Urban Local Bodies under the State Government shall be transferred to the administrative control of the School and Mass Education Department and declared the teaching and non-teaching staff of those Schools as Government employees with effect from the date issuance of the resolution but not from the date of the decision was taken by the Cabinet. Be it stated that when the Cabinet has taken decision to give effect the pensionary benefit with effect from 1.8.2002 retrospectively but the resolution was issued to give effect to such benefit prospectively, i.e., from the date of issuance of the notification. Since the Municipality Rule and the teachers actually working in the Urban Local Bodies have performed the same duties as performed by the teachers in the Government Schools, any sort of inaction to give the equal benefits of State Government School teachers to the petitioner and similarly situated persons not only smack of law but also violating Articles 14 and 16 of the Constitution of India. So, writ is filed to direct the opposite parties to fix up the revised scale of pay of teachers of Urban Local Bodies including petitioner with effect from 1.8.2002 but not from 28.2.2004 and consequently the notification giving benefit prospectively should be declared illegal.

5. Contrasting the contents of the writ petiti