Back
IN THE HIGH COURT OF ORISSA
S. Chatterji, D.M. Patnaik, JJ.
BIDYADHAR BHUYAN - APPELLANT
Versus
STATE OF ORISSA AND OTHERS - RESPONDENT
Original Jurisdiction Case No. 1364 of 1995
Decided On : 14-11-1995
WRIT PETITION - TAKING OVER OF MANAGEMENT OF NON-GOVERNMENT FULLY AIDED HIGH SCHOOLS BY GOVERNMENT - SERVICE CONDITIONS OF EMPLOYEES - RESOLUTION DATED 16-12-1994 ISSUED BY THE STATE OF ORISSA - CHALLENGE - VALIDITY OF RESOLUTION - AGE OF SUPERANNUATION - PENSIONARY BENEFITS - LEAVE BENEFITS - SENIORITY - CUT-OFF DATE - OPTION GIVEN BY EMPLOYEES - LEGALITY AND PROPRIETY OF TAKING OVER - JURISDICTION OF HIGH COURT - MAINTAINABILITY OF WRIT PETITION - RELEVANCE OF SERVICE RULES - CONSTITUTIONAL PROTECTION - ARTICLES 14, 16, 21, 39(E), 41, 43(3) OF THE CONSTITUTION OF INDIA - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioners, employees of non-government fully aided high schools, challenged the resolution dated 16-12-1994 issued by the State of Orissa, whereby the management of such schools was taken over by the Government, and their service conditions were to be governed by the Government rules. The main grievance of the petitioners was that the resolution reduced their age of superannuation from 60 years to 58 years, and also affected their pensionary benefits, leave benefits, and seniority. The petitioners contended that the resolution was illegal, irrational, violative of their fundamental rights, and discriminatory.
Finding of the Court:
The Court held that the resolution was not illegal or irrational, and that the State Government had the right to take over the management of the schools. However, the Court found that the provisions of the resolution reducing the age of superannuation and affecting the pensionary benefits of the petitioners were unjust and violative of their constitutional rights. The Court also held that the option given by the employees to the take-over could not preclude them from challenging the resolution as irregular, illegal, and unconstitutional.
Issues: 1. Whether the resolution dated 16-12-1994 issued by the State of Orissa, taking over the management of non-government fully aided high schools and governing the service conditions of the employees by Government rules, was legal and valid? 2. Whether the reduction of the age of superannuation from 60 years to 58 years and the changes in pensionary benefits, leave benefits, and seniority were justified? 3. Whether the option given by the employees to the take-over precluded them from challenging the resolution? 4. Whether the State Government had the right to take over the management of the schools? 5. Whether the resolution violated the fundamental rights of the petitioners?
Ratio Decidendi: 1. The Court held that the resolution was not illegal or irrational, and that the State Government had the right to take over the management of the schools. However, the Court found that the provisions of the resolution reducing the age of superannuation and affecting the pensionary benefits of the petitioners were unjust and violative of their constitutional rights. 2. The Court held that the option given by the employees to the take-over could not preclude them from challenging the resolution as irregular, illegal, and unconstitutional. 3. The Court held that the State Government had the right to take over the management of the schools, but that the resolution violated the fundamental rights of the petitioners.
Final Decision: The Court allowed the writ petitions in part, striking down the provisions of the resolution reducing the age of superannuation and affecting the pensionary benefits of the petitioners. The Court directed the State Government to frame a proper scheme for pension, taking into account the advantages and disadvantages of the erstwhile employees and the impact of the Government scheme. The Court also directed that the petitioners be recalled to rejoin their services and continue till completion of their sixty years of age.
JUDGMENT :
S. Chatterji, J. - This writ petition along with hundreds of similar petitions as listed on 19-9-1995 has comprehensively been heard by this Bench. As suggested and agreed by several lawyers (sic) for the respective petitioners in different cases as aforesaid and the learned Addl. Govt. Advocate, this Bench was given to understand that the cases would be argued by three or four prominent counsels appearing for the parties and in order to save time the other counsel will adopt the arguments on behalf of their petitioners. This Court also found the suggestion as practicable and viable and observed that necessary submissions might be made embracing all the points as canvassed on behalf of the petitioners. The learned Addl. Govt. Advocate also agreed to the suggestion.
2. The petitioners thus have mainly challenged the resolution dated 16-12-1934 of the Government of Orissa. School and Mass Education Department as to taking over the management of all non-Government fully aided High Schools by Government service coditions of the employees. For proper appreciation and by way of ready reference, the entire resolution dated 16-12-1994 is quoted herein-below :
No. 38522/SME
VIII SM(M) 3/94
GOVERNMENT OF ORISSA
SCHOOL AND MASS EDUCATION DEPARTMEMT
RESOLUTION
Bhubaneswar Dated 16-12-1994
Sub:--Taking over the management of all non-Government fully aided High Schools by Government--Service conditions of the employees.
Government had decided in principle on 7-6-1994 to take over the non-Government aided High Schools in receipt of full salary cost. The Managing Committee of these institutions were informed to comply with the terms and conditions of take over as laid down in this Department letter No. 20645 dated 24-6-1994. The non-Government aided High Schools (as per the list enclosed) in receipt of full salary cost, have resolved to hand over the management along with approved teaching and run-teaching staff including assets as on 7-6-1994 and have furnished written consent of each of such staff. Accordingly it has been decided to take over the management of these schools along with approved teaching and non-teaching staff and assets with effect from 7-6-1994. Government would not be liable to clear any liability whatsoever relating to the period prior to and/or as, on and after 7-6-1994 incurred by the Managing Committee.
2. The taken over employees would be treated as Government servants with effect from 7-6-1994 only and their service conditions would be as follows :
2. 1. Seniority :
The seniority of the taken over employees in respective cadres under the State Government will be determined taking into account 7-6-1994 as the date of entry Into Government service and the inter se seniority of the taken over employees prior to 7-6-1994 will be determined in accordance with the guidelines prescribed in this Department letter No. 27236 dated 26-8-1994 subject to decision of competent Court of law where pending on the date of take-over.
2. 2. Fixation of pay and date of increment :
As the teachers are entitled to salary in the scales of pay applicable to their counterparts in the State Government, their pay shall be protected on their coming over to Government service without any change in the date of increment.
2. 3. Pensionary benefits :
Pensionary and other retirement benefits admissible to State Government servants shall be admissible to such employees for the period of their service under Government with effect from 7-6-1994. The remaining aided service shall be governed by the Orissa Aided Educational Institutions 'Employees' Retirement Benefit Rules, 1981.
2. 4. Provident Fund :
Such employees shall subscribe to the State Government Provident Fund and shall be governed by the General Provident Fund (Orissa) Rules.
2. 5. Leave :
Leave benefit as admissible to Government servants shall be admissible to such employees on the basis of service rendered by them with effect from 7-6-1994.
2. 6. House Rent Allowance :
House Rent Allowance as admissi
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
