Orissa High Court
Bishwaranjan Pradhan vs State Of Odisha on 11 March, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.14619 of 2019
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
1. Bishwaranjan Pradhan
Aged about 42 years
Son of Sri Krushna Chandra Pradhan
At present working as:
Senior Technical Consultant
Office of District Project Office
Samagra Shiksha, Puri
At/PO/District: Puri.
2. Sangran Keshari Prusty
Aged about 27 years
Son of Sri Pravakar Prusty
At present working as:
Technical Consultant
Office of District Project Office
Samagra Shiksha, Jagatsinghpur
At/PO/District: Jagatsinghpur…. Petitioners
-VERSUS-
1. State of Odisha
Represented though
Chief Secretary-cum-Chairman
Executive Committee
OPEPA (Renamed as “OSEPA”)
At: Secretariat Building
W.P.(C) No.14619 of 2019 Page 1 of 69
PO: Bhubaneswar
District: Khordha.
2. Development Commissioner-cum-
Co-Chairman, Executive Committee
OPEPA (Re-named as “OSEPA”)
At: Secretariat Building
PO: Bhubaneswar
District: Khordha.
3. Secretary to Government
School and Mass Education Department
Odisha
and
Vice-Chairman, Executive Committee
OPEPA (Renamed as “OSEPA”)
At: Secretariat Building
PO: Bhubaneswar
District: Khordha.
4. Special Secretary to Government
School and Mass Education Department
Odisha
At: Secretariat Building
PO: Bhubaneswar
District: Khordha.
5. State Project Director, OPEPA/OSEPA
At: Shiksha Soudha, Unit-V
Bhubaneswar
District: Khordha. … Opposite parties
Counsel appeared for the parties:
For the Petitioner : Mr. Budhadev Routray,
Senior AdvocateW.P.(C) No.14619 of 2019 Page 2 of 69
along with
Mr. Avijit Mishra, AdvocateFor the Opposite parties : Mr. Satyabrata Mohanty,
Additional Government AdvocateP R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMANDate of Hearing : 27.11.2024 :: Date of Judgment : 11.03.2025
J UDGMENT
Assailing the decision of the Government of Odisha in
Department of School and Mass Education as reflected
in Office Order No.16057– SME-MSSA-MSSA1-0084-
2019/SME, dated 01.08.2019 (Annexure-17), the
petitioners– Senior Technical Consultant and Technical
Consultant of respective District Project Offices– have
approached this Court to invoke extraordinary
jurisdiction under the provisions of Articles 226 and 227
of the Constitution of India, with the following prayer(s):
“Under these facts and circumstances it is most humbly
prayed therefore that this Hon‟ble Court may graciously
be pleased to quash Order No. 16057, dated 01.08.2019
at Annexure-17 passed by Special Secretary to
Government, School and Mass Education, Odisha wherein
it has been directed to freeze the existing remuneration ofW.P.(C) No.14619 of 2019 Page 3 of 69
the members of the petitioner-association at the current
level with effect from 31.03.3019,And further be pleased to direct the opposite parties take
necessary steps to revise the remuneration of the
petitioners taking into account revised scale of pay
granted to Government employees as per 7th Pay
Commission, provision under 45(a) of Memorandum of
Association (Rules & Regulations), Odisha Primary
Education Programme Authority that “scale of pay in
respect of posts to be created by the Executive Committee
shall correspond either to the Central Government or State
Government scale of pay”, principle of equal pay for equal
work and the observations made in 36th Executive
meeting of OPEPA/OSEPA held on 21.03.2018,Or in the alternative pass any other order/orders deem fit
and proper in this case.
And for the said act of kindness, the petitioner as in duty
bound shall ever pray.”
Facts:
2. Facts, as outlined by the writ petitioners, reveal that the
petitioner No.1 facing process of selection, being selected
was appointed in the post “of Technical Consultant on
contractual basis with consolidated pay of Rs.6,000/- in
the District Project Office, Sarva Shiksha Abhiyan,
Kandhamal vide Office Order No. 4454/OPEPA/03 dated
22.11.2003 issued by the opposite party No.5. Similarly,
the petitioner No.2 was appointed in the post of
Technical Consultant on contractual basis with
consolidated pay of Rs.17,089/- in the District Project
W.P.(C) No.14619 of 2019 Page 4 of 69
Office, Sarva Shiksha Abhiyan, Baragarh vide Office
Order No.6605/Estt/14 dated 08.08.2014 issued by
opposite party No.5.
2.1. Odisha Primary Education Program Authority1 (for
brevity, “OPEPA”) came in to existence as a registered
society in January, 1996 under the aegis of the School &
Mass Education (S&ME) department of the Government
of Odisha. OPEPA implements the flagship programme of
Sarva Shiksha Abhiyan across the entire State, touching
children studying in educational institutes related to
Elementary Education. In a nutshell, the Organisation
runs under the administrative control of School and
Mass Education Department, Government of Odisha.
2.2. The OPEPA has been implementing different
programmes like District Primary Education Programme-
I (DPEP-I) and DPEP-II, Reconstruction of School
Building Programme, Sarva Shiksha Abhiyan (SSA)2,
1 In Government of Odisha, School and Mass Education Department, Resolution
No.11254– SME-FE-OES-0251-2018/SME, dated 24.05.2019, it has been
stated as follows:
“After merger of OPEPA and OMSM for better convergence and management of
Elementary, Secondary and Higher Secondary Schools of the State, a new
organisation namely, Odisha School Education Programme Authority (OSEPA) is
created with the merger of the above two organisations.”
2 Article 21-A of the Constitution of India and the Right of Children to Free and
Compulsory Education Act, 2009 incorporates the words „free and compulsory‟.
„Free education‟ means that no child, other than a child who has been admitted
by his or her parents to a school which is not supported by the appropriate
Government, shall be liable to pay any kind of fee or charges or expenses which
may prevent him or her from pursuing and completing elementary education.
„Compulsory education‟ casts an obligation on the appropriate Government and
local authorities to provide and ensure admission, attendance and completion of
elementary education by all children in the 6-14 age group. With this, India has
moved forward to a rights based framework that casts a legal obligation on the
W.P.(C) No.14619 of 2019 Page 5 of 69
Rastriya Madhyamik Shiksha Abhiyan (RMSA), National
Programme for Education of Girls at Elementary Level
(NPEGEL), Kasturba Gandhi Balika Vidyalaya (KGBV)
and Samagra Shiksha since last 22 years.
2.3. After OPEPA was formed, Odisha Primary Education
Programme Authority Service Rules and Regulations
1996 (Annexure-B/4 of the counter affidavit) was framed
in terms of Clause 5(n) of the Memorandum of
Association of Odisha Primary Education Programme
Authority read with Rule 36 of the Rules and the
Regulations made thereunder.
2.4. The District Primary Education Programme (DPEP)-I
which was a centrally sponsored project, started in the
year 1995-96 in eight districts in the State of Odisha,
came to be ceased in the year 2003-04. However, the
District Primary Education Programme (DPEP)-II started
in the year 2001-02 in other eight districts and the same
continued till 2008-2009. As per sanction order issued
by the Government of India vide Letter dated 15.11.1996
Central and State Governments to implement this fundamental child right as
enshrined in the Article 21A of the Constitution, in accordance with the
provisions of the RTE Act. Sarva Shiksha Abhiyan (SSA) is implemented as
India‟s main programme for universalising elementary education. Its overall
goals include universal access and retention, bridging of gender and social
category gaps in education and enhancement of learning levels of children. SSA
provides for a variety of interventions, including inter alia, opening of new
schools and alternate schooling facilities, construction of schools and additional
classrooms, toilets and drinking water, provisioning for teachers, periodic
teacher training and academic resource support, textbooks and support for
learning achievement. These provisions need to be aligned with the legally
mandated norms and standards and free entitlements mandated by the RTE
Act. [See, osepa.odisha.gov.in].
W.P.(C) No.14619 of 2019 Page 6 of 69
and Letter 22.11.2001, the grant was subject to the
condition that the terms and conditions of services of the
employees of the society would be normally according to
the terms and conditions applicable to similar categories
of employees in the State Government but not exceeding
those admissible to the similarly placed in the Central
Government.
2.5. The background history would suggest that OPEPA took
up a centrally sponsored Project named as Sarva
Sikhsya Abhiyan (hereinafter be called “SSA”) in the year
2002-03, which aimed at universalization of Elementary
Education (Class-1 to Class-8) and to fulfil the
constitutional mandate of providing free and compulsory
education to the children in the age group 6-14 years in
30 districts of the State of Odisha. Engagements of
employees were made following due procedure and they
worked on payment of consolidated salary fixed for
different posts. The employees, working in DPEP-I, were
absorbed in SSA in the year 2003-04 and later, those
working in DPEP-II were absorbed after closure of the
same in the year 2008-09. After formation of OPEPA, the
employees working under DPEP were brought in and
additional employees were recruited by adhering to due
procedure. The employees, working under the DPEP
projects, have been working in SSA as of date.
W.P.(C) No.14619 of 2019 Page 7 of 69
2.6. The provision under Regulation 45(a) of Memorandum of
Association (Rules & Regulations), OPEPA would
transpire that “scale of pay in respect of posts to be
created by the Executive Committee shall correspond
either to the Central Government or State Government
scale of pay”. As the same was not given effect to and the
employees were being paid consolidated pay, Sub-
Committee was constituted by the OPEPA for revision of
remuneration of direct recruits with contractual position
under the OPEPA. In the Meeting held on 23.05.2006,
decision was taken to revise the remuneration of the
employees of the OPEPA streamlined with the provisions
of the Odisha Revised Scales of Pay Rules, 1998.
2.7. The recommendations of Sub-Committee dated
23.05.2006 was placed before the 23rd Executive
Committee in the Meeting held on 05.12.2006. Vide item
No.5, the recommendations for enhancement of
remunerations of the employees were approved. In
pursuance thereof, Office Order dated 25.01.2007 was
issued by the opposite party No.5 where the scale of pay
of the employees of the OPEPA was revised as per the
Odisha Revised Scales of Pay Rules, 1998.
2.8. In the Meeting held on 05.12.2008, the Executive
Committee extended the benefit of the consolidated
remuneration of all contractual employees of OPEPA
W.P.(C) No.14619 of 2019 Page 8 of 69
(State Project Office and District Project Office) with
effect from 01.04.2008.
2.9. Accordingly a decision was taken in the Meeting of 27th
Executive Committee of OPEPA held on 16.08.2011 that
the remuneration of contractual employees of the State
Project Office as well as the District Project Office under
project management was to be enhanced with effect from
01.08.2011. Furthermore, the employees were allowed to
avail House Rent Allowance as would be applicable and
the existing medical allowance. The contractual
employees were also allowed 3% hike over the
remuneration on yearly basis from 01.08.2012.
2.10. Vide Notification dated 29.07.2013, a Committee was
constituted by the Government of Odisha in School and
Mass Education Department to consider the grievances
of the OPEPA Employees‟ Service Association regarding
issues of the employees of OPEPA working in the State
Project Office and the District Project Office in
connection with the benefits and other matters relating
to their service which was notified in the Odisha Gazette
vide Notification dated 29.07.2013.
2.11. Governing Body of OPEPA in its Meeting dated
29.10.2013, presided over by the Hon‟ble Chief Minister,
Odisha and President, Governing Body, OPEPA, along
with other matters, recommended as follows:
W.P.(C) No.14619 of 2019 Page 9 of 69
“Item No. 5(i)–
On the proposal of formulating a career advancement
policy for the staffs of OPEPA, the Hon‟ble Minister, School
& Mass Education Department expressed his satisfaction
on the performance of the staffs of OPEPA in
implementation of the various schemes of SSA and RTE
and requested the House for favourable consideration. It
was resolved that the matter may be examined by the
Committee constituted earlier by Government under
chairmanship of State Project Director, OPEPA and place
before Executive Committee for necessary
recommendation.”
2.12. Vide Meeting held on 19.11.2013, the Committee
constituted to look into various issues of OPEPA
Employees Service Union in connection with the benefits
and other matters relating to their service, discussed
about regularisation of services of contractual employees
of OPEPA. After thorough discussion and deliberation
the Committee recommended to fix up the remuneration
of different categories of employees of OPEPA at par with
the initial pay structure including the D.A. of similar
categories of posts in the State Government. Such
decision was taken in consonance with the manner
provided in Regulation 45(a) of Memorandum of
Association (Rules & Regulations), Odisha Primary
Education Programme Authority. It recommended for 2%
annual enhancement of pay with effect from 01.01.2006
at par with State Government employees. Further it was
W.P.(C) No.14619 of 2019 Page 10 of 69
recommended that in the event of enhancement of D.A.
by the State Government, the same would also be made
applicable and the same would be added to the base
remuneration of the employees of OPEPA. Besides,
House Rent Allowance calculated as per Government
prescribed norms, they would be entitled to other
allowances including benefits under the Employees‟
Provident Funds and Miscellaneous Provisions Act,
1952. It was recommended to allow incentive @ 3% on
the base remuneration to be paid on yearly basis.
Employees who completed 6 years of satisfactory service
as on 01.01.2014, the renewal of annual contract was
stated to be dispensed with and they are allowed to
continue till adverse is noticed.
2.13. Vide Item No.6:1 of Proceeding of the 30th Meeting of
Executive Committee of OPEPA held on 06.03.2014,
recommendations of the Committee constituted by the
Government to look into the demands of the OPEPA
Employees‟ Service Association were taken up and it was
approved as follows:
“The base remuneration of different categories of
employees of OPEPA would be fixed at par with the initial
pay structure of similar types of posts in the state
government and with due recognition to the seniority, an
annual incentive @2% on the base remuneration per
completed year of service will be allowed counted from
01.01.2006 or from the date of joining whichever is laterW.P.(C) No.14619 of 2019 Page 11 of 69
as per the following statement”. That vide proceeding of
the committee meeting for assessment of performance &
implementation of enhanced salary to contractual
employees of OPEPA held on 06.09.2014 it was observed
that the in the year 2013-14, Rs.2939.84 lakhs was spent
towards salary for both State Project office and district
project office. On fixation of revised pay of OPEPA
employees, a total of Rs.3001.19 lakhs (approx) will be
incurred as expenditure against the approved outlay of
Rs.4674.70 lakhs which is within the Project Approval
Board (PAB) approval in salary component under project
management cost.”
2.14. Pursuant to such recommendation of the Governing
Body and approval of the Executive Committee of
OPEPA, Office Order No.7970, dated 20.09.2014 was
issued by the opposite party No.4 wherein it was
mentioned that the said revision of pay has been effected
in pursuance of decision of the Executive Committee of
OPEPA in its Meeting dated 06.03.2014, and the
remunerations of contractual employees of the State
Project Office and the District Project Offices under
project management head have been revised, which was
within the ceiling limit of management cost of Annual
Working Plan and Budget, 2014-15 approved by PAB,
Ministry of Human Resource Development, Government
of India, Delhi.
W.P.(C) No.14619 of 2019 Page 12 of 69
2.15. While the matter stood thus, “Sarva Shiksha Abhiyan”
got subsumed in “Samagra Shiksha”3. Vide Item No.9.1
3. Visiting webportal of “Samagra Shiksha, Department of School Education and
Literacy, Ministry of Education, Government of India–
samagra.education.gov.in– the framework and the purport of Samagra Shiksha
is couched in the following terms:
“The Union Budget, 2018-19, has proposed to treat school education holistically
without segmentation from pre-nursery to Class 12. Samagra Shiksha– an
overarching programme for the school education sector extending from pre-school
to class 12 has been, therefore, prepared with the broader goal of improving
school effectiveness measured in terms of equal opportunities for schooling and
equitable learning outcomes. It subsumes the three erstwhile Schemes of Sarva
Shiksha Abhiyan (SSA), Rashtriya Madhyamik Shiksha Abhiyan (RMSA) and
Teacher Education (TE).
This sector-wide development programme/scheme would also help harmonise the
implementation mechanisms and transaction costs at all levels, particularly in
using state, district and sub-district level systems and resources, besides
envisaging one comprehensive strategic plan for development of school education
at the district level. The shift in the focus is from project objectives to improving
systems level performance and schooling outcomes which will be the emphasis of
the combined Scheme along-with incentivizing States towards improving quality of
education.
The Goal SDG-4.1 states that “By 2030, ensure that all boys and girls complete
free, equitable and quality primary and secondary education leading to relevant
and effective learning outcomes. Further the SDG 4.5 states that “By 2030,
eliminate gender disparities in education and ensure equal access to all levels of
Education and vocational training for the vulnerable, including persons with
disabilities, indigenous peoples and children in vulnerable situations.
The scheme envisages the „school‟ as a continuum from pre-school, primary,
upper primary, secondary to Senior Secondary levels. The vision of the Scheme is
to ensure inclusive and equitable quality education from pre-school to senior
secondary stage in accordance with the Sustainable Development Goal (SDG) for
Education.
The major objectives of the Scheme are provision of quality education and
enhancing learning outcomes of students; Bridging Social and Gender Gaps in
School Education; Ensuring equity and inclusion at all levels of school education;
Ensuring minimum standards in schooling provisions; Promoting Vocationalisation
of education; Support States in implementation of Right of Children to Free and
Compulsory Education (RTE) Act, 2009; and Strengthening and up-gradation of
SCERTs/State Institutes of Education and DIET as a nodal agencies for teacher
training.
The main outcomes of the Scheme are envisaged as Universal Access, Equity and
Quality, promoting Vocationalisation of Education and strengthening of Teacher
Education Institutions (TEIs).
The Scheme will be implemented as a Centrally Sponsored Scheme by the
Department through a single State Implementation Society (SIS) at the State/UT
level. At the National level, there would be a Governing Council headed by
Minister of Education and a Project Approval Board (PAB) headed by Secretary,
Department of School Education and Literacy. The Governing Council will be
empowered to modify financial and programmatic norms and approve the
detailed guidelines for implementation within the overall Framework of the
scheme. Such modifications will include innovations and interventions to improve
W.P.(C) No.14619 of 2019 Page 13 of 69
of the 35th Meeting of the Executive Committee of the
OPEPA held on 02.03.2017, a change of nomenclature of
the Odisha Primary Education Programme Authority
(OPEPA) was effected and in its place, said Authority is
renamed as the Odisha School Education Programme
Authority (for brevity, “OSEPA”). While the Sarvathe quality of school education. The Department will be assisted by a Technical
Support Group (TSG) at Educational Consultants of India Limited (EdCIL) to
provide technical support in functional areas pertaining to access, equity and
quality education by merging the TSGs of the Schemes of SSA, RMSA and TE.
States would be expected to bring a single Plan for the entire school education
sector.
The fund sharing pattern for the scheme between Centre and States is at present
in the ratio of 90:10 for the 8 North-Eastern States viz. Arunachal Pradesh,
Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura and 3
Himalayan States viz. Jammu & Kashmir, Himachal Pradesh and Uttarakhand
and 60:40 for all other States and Union Territories with Legislature. It is 100%
centrally sponsored for Union Territories without Legislature. This is in
accordance with the recommendations of the Sub-Group of Chief Ministers on
Rationalization of Centrally Sponsored Schemes received in October, 2015.
The major interventions, across all levels of school education, proposed under the
scheme are: (i) Universal Access including Infrastructure Development and
Retention; (ii) Gender and Equity; (iii) Inclusive Education; (iv) Quality; (v)
Financial support for Teacher Salary; (vi) Digital Initiatives; (vii) RTE Entitlements
including uniforms, textbooks etc.;(viii) Pre-school Education; (ix) Vocational
Education; (x) Sports and Physical Education; (xi) Strengthening of Teacher
Education and Training; (xii) Monitoring; (xiii) Programme Management; and (xiii)
National Component. It is proposed that preference in the interventions would be
given to Educationally Backward Blocks (EBBs), LWEs affected districts, Special
Focus Districts (SFDs), Border areas and the 117 Aspirational districts.
The main emphasis of the Scheme is on improving quality of school education by
focussing on the two T‟s– Teacher and Technology. The strategy for all
interventions under the Scheme would be to enhance the Learning Outcomes at
all levels of schooling. The scheme proposes to give flexibility to the States and
UTs to plan and prioritize their interventions within the scheme norms and the
overall resource envelope available to them. Funds are proposed to be allocated
based on an objective criteria based on enrolment of students, committed
liabilities, learning outcomes and various performance indicators.
The Scheme will help improve the transition rates across the various levels of
school education and aid in promoting universal access to children to complete
school education. The integration of Teacher Education would facilitate effective
convergence and linkages between different support structures in school
education through interventions such as a unified training calendar, innovations
in pedagogy, mentoring and monitoring, etc. This single scheme will enable the
SCERT to become the nodal agency for conduct and monitoring of all in-service
training programmes to make it need-focused and dynamic. It would also enable
reaping the benefits of technology and widening the access of good quality
education across all States and UTs and across all sections of the Society.”
W.P.(C) No.14619 of 2019 Page 14 of 69
Shiksha Abhiyan was implementing the project relating
to students of Class-I to Class-VIII, but the Samagra
Shiksha aims at implementing the project from Pre-
Primary to +2 students in the State of Odisha.
2.16. The Executive Committee of OPEPA had its 36th Meeting
on 21.03.2018, where certain proposals were placed
which is discussed infra. The Executive Committee
decided to examine the matter in the School and Mass
Education Department in consultation with the Finance
Department. Vide Item No.11.3, the Executive
Committee made the following approval:
“Renewal of TOR of employees.
It has been approved in the 35th Meeting of EC, OPEPA
that the contractual employees those who have completed
06 years of satisfactory service as on 01.01.2014, the
renewal of contract may be dispensed with and they may
be allowed to continue till adverse is noticed. Further, as
per provision of Rule 4(d) of OPEPA Service Rules and
Regulations, 1996, “the appointment of officers/staff
either on deputation or re-employment or on contract shall
be initially for a period of 02 years extendable for further
period depending upon their performance and continuity
of the programme, by the Executive Committee.
On the basis of this a Committee constituted by
Government of Odisha vide Government Notification No.
17364 dated 29.07.2013 and as per the kind approval of
the 4th Governing Body under the Chairmanship of
Hon‟ble Chief Minister, Odisha recommended as stated
above. Hence, it is proposed to renew the contract those
W.P.(C) No.14619 of 2019 Page 15 of 69
who have not completed 06 years of service as on
01.01.2014 and their renewal should be done as per
previous practice. This has also been communicated to all
esteemed members of EC as well as Administrative
Department, Finance Department, Government of India
and Chief Secretary, Chairman, EC, Odisha. This has also
been confirmed by all concerns.
But now it is felt necessary that, all employees are also to
be included in annual TOR for better HR management.
The matter was discussed and appraised to the
Committee that no compliance has been made and no
executive instruction has been issued in this regard. The
Committee unanimously approved to reintroduce the TOR
for all employees for better HR management as per earlier
practice.”
2.17. However, the opposite party No.4 issued an Office Order
No. 16057, dated 01.08.2019, wherein it has been
directed to freeze the existing remuneration of the
petitioners and other employees of OPEPA at the current
level with effect from 31.03.2019. Said Order dated
01.08.2019 reads thus:
“The Odisha Primary Education Programme Authority
(OPEPA) was constituted in the year 1996 under Societies
Act, 1860. The Authority has been established to function
as a social mission for bringing about a change in the
basic education system. The current remuneration
structure of persons engaged in the Society was finalised
by the 30th Executive Committee (EC) constituted at the
level of OPEPA and passed in the EC. However, Finance
Department concurrence was not taken although the StateW.P.(C) No.14619 of 2019 Page 16 of 69
bears 40% as per the Scheme structure. Practically, the
current contribution of the Centre would amount to much
lower than 60%. However, the sharing pattern of the
centre and the State since FY 2001-02 has been reduced
from 85:15 to 60:40.
At present the employees of OPEPA are drawing their
remuneration as per ORSP Rules, 2008 vide their Office
Order No.7970 dated 20.09.2019 without the approval of
the Government and concurrence of Finance Department.
Further, it is to mention that the employees of OPEPA are
Schematic employees but they are drawing gross
remuneration at a higher rate due to addition of certain
perks which are not extended to any State Government
employee. The dynamic D.A. structure twice a year is not
availed by any schematic employee of the State
Government. Due to gradual decrease in Central funding,
the financial burden has also been increasing for the
State Government.
After careful consideration, it has been decided by the
Government to freeze the existing remuneration at the
current level with effect from 31.03.2019.
The administrative department will take necessary steps
to review the remuneration structure vis-à-vis the Finance
Department guidelines. This Order will come into force
with immediate effect.
This has been concurred in by the Finance Department in
OSWAS file No. SME-MSSA-MSSA1-0084-2018.”
2.18. The instant writ petition is directed against said Order
dated 01.08.2019.
Hearing:
W.P.(C) No.14619 of 2019 Page 17 of 69
3. Pleadings, being completed and exchanged between the
learned counsel for respective parties, on their consent,
this matter is taken up for final hearing at the stage of
admission.
3.1. Accordingly, heard Sri Budhadev Routrary, learned
Senior Advocate appearing along with Mr. Avijit Mishra,
learned Advocate appearing for the Petitioner and Sri
Satyabrata Mohanty, learned Additional Government
Advocate appearing for opposite parties.
3.2. On conclusion of hearing, the matter stood reserved for
preparation and pronouncement of judgment.
Rival contentions and submissions:
4. Reiterating the facts as narrated in the writ petition, Sri
Budhadev Routray, learned Senior Advocate appearing
for the petitioner submitted that on the basis of
grievance petition submitted by the contractual
employees of OPEPA to the State Project Director,
OPEPA, the Sub-Committee constituted by OPEPA for
revision of remuneration of directly recruited contractual
staff under OPEPA held Meeting on 23.05.2006, wherein
the following was decided:
“The Sub-Committee perused the Service Rules &
Regulations 1996 of OPEPA and proceedings of the 15th
Executive Committee meeting and found that Posts like
FO Level-II, Media Consultant, Asst. Director (GirlsW.P.(C) No.14619 of 2019 Page 18 of 69
Education), System Administrator, Network Administrator,
Internal Auditor, Sr. Asst. Librarian, Zonal Coordinator
and Programme Associate (under „NPEGEL) were not
created at the time of finalization of Service Rules &
Regulations, 1996 of OPEPA. Considering the workload &
business of OPEPA, the Executive Committee considered
creation of above posts and finalized consolidated pay
against each post. Since such type of posts are not made
available in Orissa Govt. Establishment, the committee
taking into consideration of consolidated pay given by
Executive Committee, fitted those posts in the identical
pay scales available in Orissa Revised Scales of Pay
Rules, 1998 as given below:
Sl. Name of the posts Consolidated pay Fitted in Revised
No. created by EC allowed by EC Scale of Pay
(In Rs.) Rules, 1998
1 FO Level-II 10500/- 8000-275-13500
2 Media Consultant 7590/- 5500-175-9000
3 Asst. Director 10000/- 6500-200-10500
(Girls Education)
4 System 6000/- 5000-150-8000
Administrator
5 Network 6000/- 5000-150-8000
Administrator
6 Internal Auditor 8000/- 5500-175-9000
7 Sr. Asst. 4700/- 4750-125-7500
8 Librarian 6000/- 5000-150-8000
9 Zonal Coordinator 12000/- 8000-275-13500
(NPEGEL)
10 Prog. Associate 9000/- 6500-200-10500
(NPEGEL)Rule 9(a) in Chapter-III of Orissa Primary Education
Programme Authority (OPEPA) Service Rules &
Regulations 1996 provides that the directly engaged staff
appointed on fixed sum shall draw the fixed amount after
they join their post and shall continue to draw the same
W.P.(C) No.14619 of 2019 Page 19 of 69
until the amount is revised by the Executive Committee.
No dearness allowance shall be paid in these cases. The
16″ Executive Committee have decided for payment of
consolidated remuneration to the contractual staff of
OPEPA engaged at State Project Office and District Project
Offices of SSA/DPEP districts.
After detailed discussion and thorough examination of
pay/remuneration structure of State Project Office,
SSA/DPEP, West Bengal, Tamil Nadu State Mission of
Education for All, Uttar Pradesh Rajya Pariyojana
Karjyalaya, Maharastra Prathamik Shikshan Parishad,
the Committee recommends that:
1) The post of System Analyst (SA) shall be re-
designated as Asst. Director(MIS) equivalent to other
posts of Asst. Directors in OPEPA in view of the
importance of Management Information System and
present work load in OPEPA.
2) Consolidated pay of all officers of OPEPA engaged
on contract basis under Group-B, C & D will be fixed
@150% of the basic pay of the pay scale applicable
to State Govt. employees of equivalent post/cadre in
the existing pay scales (Orissa Revised Scales of
Pay Rules 1998) as in Annexure-II.
3) The directly engaged Officers in Group B,C & D will
get HRA as per the Finance Department Office
Memorandum in force.
4) No Medical Allowance shall be given to the
contractual staff.
5) Annual increase @ 2% of consolidated pay will be
given to the directly recruited Officers in Group B,C
& D subject to review of performance.
W.P.(C) No.14619 of 2019 Page 20 of 69
6) Consolidated remuneration of the existing directly
recruited Officers in Group-B,C &D shall be fixed
giving lump sum of Rs.300/-, Rs.250/- & Rs.200/-
over and above of the consolidated pay respectively
to the Group B,-C & D categories of officers:
The revision of pay/remuneration of Officers of
OREPA in Group B,C & D categories directly
recruited on contract basis shall be given effect from
1.4.2006.
The Executive Committee may consider the
recommendation of Sub-Committee regarding revision of
pay/remuneration and other allowances of the Officers of
Group B, C & D categories in the State Project Office,
District Project Offices of DPEP/SSA districts and Zonal
Office (NPEGEL). The financial implication on revision of
the consolidated pay/remuneration has been worked out
at Annexure-III which is within the 6% of the management
cost of the approved Work Plan & Budget.”
4.1. In the 23rd Executive Committee, the representation of
contractual employees of OPEPA was considered and
vide Office Order No.543/Estt/07, dated 25.01.2007
revision of consolidated remuneration structure has
been laid down as follows:
“1. To have one category of Group „B‟ Officers and six
categories of Group „C‟ Officers and one category
under Group „D‟ Officers for State Project Office.
Similarly five categories of Officers under Group „C‟
and one category for Group „D‟ Officers for District
Project Offices under DPEP/SSA. For Zonal office at
Rayagada it has been decided to have two
categories of Officers one each of Group „B‟ & „C‟.
W.P.(C) No.14619 of 2019 Page 21 of 69
2. To grant House Rent Allowances of 10% of the
consolidated remuneration for the State Project
Office Staff, Staff of District Offices, Puri, Cuttack &
Sambalpur. For all other staff of District Project
Offices and Zonal Office under NPEGEL at
Rayagada 7.5% of the basic consolidated
remuneration.
3. To maintain a priority among the staff, Officers who
have joined in 2003 will get extra remuneration on
the basic of their seniority over those who have
joined in 2004 & 2005.
4. To grant an annual increase of 2% of the
consolidated remuneration to the disengaged staff
subject to review of their performance.
5. The revision of remuneration structure of all
officer/staff directly engaged will be given effect
from 01.04.2006.
The details of revised remuneration structure are given at
Annexure „A‟.
The remuneration structure of different Group „B‟, „C‟ and
„D‟ Officers of State Project Office will be prepared by the
Establishment Section and then it will be counter signed
by Finance Officer, OPEPA (Sri A.K. Dhal) to avoid any
wrong calculation. Similarly, revised remuneration
structure of District Project Offices will be prepared by the
District Project Office and then submit to the State Project
Office for countersignature by Finance Officer. For Zonal
Office under NPEGEL at Rayagada, Zonal Coordinator will
prepare the revised remuneration structure of the Zonal
Office and then submit to the State Project Office for
countersignature by Finance Officer. After receipt of theW.P.(C) No.14619 of 2019 Page 22 of 69
countersigned revised remuneration calculation sheet, the
District Project Office and Zonal Office under NPEGEL at
Rayagada will draw the remuneration of the contractual
staff.
Calculation of revised consolidated remuneration shall be
prepared in the prescribed format as at Annexure-B.”
4.2. In the Meeting of 4th Governing Body of OPEPA held on
29.10.2013, being presided over by the Hon‟ble the Chief
Minister of the Odisha and President of Governing Body,
OPEPA, the following decision was taken:
“(i) On the proposal of formulating a career
advancement policy for the staff of OPEPA, the
Hon‟ble Minister, School & Mass Education
Department expressed his satisfaction on the
performance of the staff of OPEPA in implementation
of the various schemes of SSA and RTE and
requested the House for a favourable consideration.
It was resolved that this matter may be examined by
the Committee constituted earlier by the Government
under the Chairmanship of State Project Director,
OPEPA and place before the Executive Committee for
necessary recommendation.
(ii) Dr. Pranati Panda, Professor of NUEPA suggested
that the job and responsibility of the educational
administrators should be clearly defined.”
4.3. It is pointed out by learned Senior Counsel that in the
4th Governing Body Meeting of OPEPA as many as 24
Members were present and participated. One of the
W.P.(C) No.14619 of 2019 Page 23 of 69
Members as shows in Annexure-A of the said
proceedings reflects as follows:
Sl. Name Designation Member
No.
*** *** *** ***
4 Sri Upendra Additional Chief Secretary to Member
Nath Behera, Govt., Finance Department,
IAS Govt. of Odisha
*** *** *** ***
4.4. He went on to submit that the remuneration which the
petitioners are getting today was recommended by the
4th Governing Body Meeting of OPEPA, which was
presided over by the Chief Minister, Odisha on
29.10.2013 and again the same was further
recommended by the Special Committee vide Meeting
dated 19.11.2013 and finally the same was approved by
30th Executive Committee Meeting of OPEPA on
06.03.2014. The 30th Executive Committee “was
presided over by the Chief Secretary-cum-Chairman
OPEPA and the decision to extend career advancement
was taken keeping in terms of Regulation 45(a) of
Memorandum of Association (Rules and Regulations),
Odisha Primary Education Programme Authority.
4.5. It has been urged that at present the petitioners are
getting much less remuneration than that of the State
Government employees working in the similar positions.
As the impugned Office Order (Annexure-17) has been
W.P.(C) No.14619 of 2019 Page 24 of 69
passed by an incompetent authority and without taking
into account the provisions contained in the
Memorandum of Association, the reasons mentioned in
the said order cannot be countenanced.
4.6. It is averred that since responsible officer of the Finance
Department represented in the Meeting, the impugned
Office Order dated 01.08.2019 vide Annexure-17
showing that the employees of the OPEPA were drawing
remuneration as per the Odisha Revised Scales of Pay
Rules, 2008 without approval of the Government and
concurrence of the Finance Department is unwholesome
and a myth.
4.7. Advancing further argument, learned Senior Advocate
Sri Budhadev Routray referring to Annexure-12, i.e., the
proceeding of the Committee Meeting held on
19.11.2013 submitted that conscious decision was taken
after discussion and deliberation to fix up the
remuneration of different categories of the employees of
the OPEPA at par with the initial pay structure including
the D.A. that is extended to similar nature of posts in
the State Government. The relevant portions of said
proceeding, as referred to by Sri Budhadev Routray,
learned Senior Advocate, reflects as follows:
“***
W.P.(C) No.14619 of 2019 Page 25 of 69
2. Implementation of Career Advancement Policy and
enhancement of salary at par with State Govt.
employees.
There is a provision under 45(a) of Memorandum of
Association (Rules & Regulation), Odisha Primary
Education Programme Authority that “scale of pay in
respect of posts to be created by the Executive
Committee shall correspond either to the Central
Government or State Government Scale of Pay”.
Accordingly, under the Odisha Primary Education
Programme Authority Service Rules & Regulations,
1996, the staffing pattern for the State Project Office
as well as the District Project Offices has been
prescribed with the scale of pay which was
equivalent to similar types of staff in the State Govt.
From time to time as per the decision of the
Executive Committee, the scale of pay of OPEPA has
been enhanced to have some type of parity with the
scale of pay of the State Govt. employees. It was
discussed and appreciated that the employees are
recruited by following the due recruitment procedure
and highly qualified persons have been engaged in
the project. Further, the successful implementation of
SSA and the different requirements of Right to
Education Act is attributable to the sincere, efficient
& dedicated discharge of duties by the project staff
both at the State level as well as at the field level.
So, payment of remuneration less than what has
been paid to similar types of posts in the State
Government will be injustice to the employees of
OPEPA. Further, there is no promotion, no career
advancement policy, no periodical Dearness
Allowance available to them as are enjoyed by the
State Government employees. The Committee after
W.P.(C) No.14619 of 2019 Page 26 of 69
thorough discussion and deliberation recommends to
fix up the remuneration of different categories of
employees of OPEPA at par with the initial pay
structure including the DA of similar types of posts
in the State Government as per statement (Annexure-
B).
2.1. There are many staff in the project who have put in
years of service. With due recognition to their
seniority, it is also recommended to allow an annual
increment at the rate of 2% per completed year of
service. Since the State Government pay structure as
per the Scale of Pay 2008, effective from 01.01.2006
is recommended to the OPEPA employees, the
seniority for the purpose of 2% annual enhancement
will be applicable from 01.01.2006.
2.2. To have parity with the salary structure of State
Government employees, it is also recommended that
whenever there is any enhancement of DA by the
State Government that will also be allowed to the
OPEPA employees. This enhancement will be added
to the base remuneration of OPEPA employees. The
HRA will be calculated as per the Govt. prescribed
rate applicable from place to place. In addition to the
above, the other allowances availed by OPEPA
employees & EPF as per EPF & MP Act will also be
provided.
2.3. Besides, it was also recommended to allow annual
incentive @ 3% on base remuneration to be paid on
yearly basis.
2.4. It was also discussed that under the Project
Management Head of the SSA Budget, sufficient
fund is available to meet the additional requirement
W.P.(C) No.14619 of 2019 Page 27 of 69
towards enhancement on the existing remuneration.
A comparative statement of last two year budget
provision & expenditure incurred under salary head
of project management is annexed as Annexure-C.
2.5. It is also recommended that in respect of employees,
who have completed 6 years of satisfactory service
as on 01-01-2014, the renewal of annual contract
may be dispensed with and they may be allowed to
continue till adverse is noticed.
2.6. The individual pay fixation will be made at SPO level
which will be countersigned by Additional Director
(General) and FA & CAO, OPEPA. Further, the
committee recommended that in case of any
anomalies in pay fixation in future, a fitment
committee may be constituted at the level of SPD,
OPEPA.”
4.8. In 30th Executive Committee Meeting of OPEPA held on
06.03.2014 (Annexure-13) after deliberation, it was
decided to implement Career Advancement of OPEPA
employees with effect from 01.03.2014. In said meeting,
the base remuneration of different categories of the
OPEPA was fixed at par with initial pay structure of
similar types of posts in the State Government. In the
Committee Meeting held on 06.09.2014 it was
unanimously agreed to implement the decisions of 30th
Executive Committee meeting held on 06.03.2014. The
remuneration of contractual employees of the State
Project Office and the District Project Office under the
Project Management Head has been revised under the
W.P.(C) No.14619 of 2019 Page 28 of 69
ceiling limit of management cost of AWP & Budget 2014-
15 duly approved by PAB, MHRD, Government of India,
New Delhi, vide Office Order No.7970/Estt./14, dated
20.09.2014 issued by the State Project Director, OPEPA.
4.9. In 36th Meeting of the Executive Committee of OPEPA
held on 21.03.2018, the following was discussed:
“***
9. Enhancement of salary/remuneration structure of
employees working under RTE-SSA & KGBV.
(A) Modification of Salary Structure of employees of
OPEPA engaged under Project Management Head of
RTE-SSA:
The employees engaged under OPEPA Project
Management Heads at State and District level are
availing Base Pay + GP + DA + Other allowances as
available to their counterpart at Government level as
per the decision of 30th Meeting of EC, OPEPA held
on 06.03.2014 w.e.f. 01.04.2014. They are also
drawing the enhanced DA as enjoyed by
Government employees from time to time. In the
meanwhile, Government of Odisha has allowed
salary as per recommendation of 7th pay
commission. Hence, for employees engaged under
Project Management Head at State and District level,
a conscious decision may be taken to avail the
remuneration on the basis of parameters fixed by
the Government of Odisha. Necessary budgetary
provision has already been made by the PAB,
Government of India under SSA during 2017-18
following due procedure.
W.P.(C) No.14619 of 2019 Page 29 of 69
The EC may kindly consider the proposal of
enhancing the salary of employees working under
Project Management at State and District level after
which the same will be placed before PAB,
Government of India for necessary approval in
Annual Work Plan and Budget, 2018-19.
This was discussed and committee decided to
examine the matter in Govt. in S & ME Deptt. In
consultation with Finance Department.
(B) Enhancement of salary/remuneration staffs
engaged under different Programme Heads.
Different Memorandums have been received from the
Employees Union regarding enhancement of salary
etc. from the Block level employees, employees of
RP(CWSN), Part Time Instructor, KGBV & Residential
Hostel employees and Multilingual Instructors. The
details of demands, present remuneration structure
have been enclosed as at Annexure-10.
Hence, for aforementioned employees a conscious
decision may be taken by EC as per the budgetary
provision made in AWP & B and approval of PAB
subject to actuals.
This was discussed and following decisions were
taken.
The matter relating to existing remuneration of
employees working under SSA at State, District and
Block Level was discussed and the committee
suggested to put up the matter before Govt. in S &
ME to examine in consultation with Finance
Department relating to existing remuneration
structure of SPO, DPO and Block Level employees
W.P.(C) No.14619 of 2019 Page 30 of 69
and the basis on which SPO and DPO employees are
now getting their remuneration at par with their
counter parts of State Govt. as per the
recommendations of 6th Pay Commission.
The committee also suggested to conduct the Human
Resources audit to examine the essential and non-
essential components, performers and non-
performers of the project in order to minimise the
man power. The committee also suggested to avoid
automatic assumption of approval of Executive
Committee on various issues relating to financial in
nature without concurrence of F.D. Since invariably
there is 40% share of Govt. of Odisha in SSA Project
and Govt. have to shoulder the entire liability after
closure of the project.”
4.10. Learned Senior Advocate would strenuously argue that
the Finance Department having been consulted at each
stage of decision making process, the Office Order issued
by the Special Secretary to Government in Anneuxre-17
stating that the OPEPA employees have been drawing
remuneration “without approval of the Government and
concurrence of Finance Department” vide Office Order
No. 7970/Estt./14, dated 20.09.2014 is far from truth.
4.11. Referring to Memorandum of OPEPA, learned Senior
Advocate submitted that the Executive Committee is well
defined and being delegated and vested with powers to
take decision(s), the State Government cannot sit over
the decision of the Executive Committee and review the
W.P.(C) No.14619 of 2019 Page 31 of 69
benefits already extended to the employees of the OPEPA
by issuing of Office Order dated 01.08.2019.
5. Per contra, valiant attempt was made by Sri Satyabrata
Mohanty, learned Additional Government Advocate
appearing for the opposite parties to justify the action of
the Government in School and Mass Education
Department in issuing Office Order dated 01.08.2019
under Annexure-17 to freeze the remuneration with
effect from 31.03.2019 (retrospectively), has taken this
Court to Memorandum of Association (Annexure-A/4
enclosed to the counter affidavit) whereby Clause 7
thereof which in specific terms empowers the State
Government and the Central Government to appoint one
or more persons to review the work and progress of the
OPEPA and to hold enquiries into the affairs thereof.
Making further reference to said document, he has relied
on Clause 21 thereof to contend that the Central
Government and the State Government were required to
be Members of the Executive Committee.
5.1. Sri Satyabrata Mohanty, learned Additional Government
Advocate laid stress on paragraph 3 of the counter
affidavit, which is extracted hereunder:
“That, it is humbly submitted that the prayer of the
petitioners in the writ application is not sustainable in the
eye of law. The decision vide its Order No.16057, dated
01.08.2019 even though communicated by the SpecialW.P.(C) No.14619 of 2019 Page 32 of 69
Secretary to Government, School and Mass Education
Department, but this is the decision of the Government
taken with the concurrence of the Finance Department. It
may not be out of place to submit that the decision dated
01.08.2019 is basically an outcome of the defects pointed
out by the Government of Odisha, Finance Department.
The petitioners have failed to implead the Finance
Department as a party to this writ application even
though they assail the Office Order dated 01.08.2019 and
described in the body of the writ application that such a
decision has been taken with the concurrence of the
Finance Department and on the basis of the objection
raised by the Finance Department. Accordingly, this is a
case of non-joinder of necessary party for which this writ
application is liable to the dismissed.”
5.2. Laying emphasis on the stand taken by the Opposite
Parties, learned Additional Government Advocate
submitted that since the Finance Department and the
Central Government are not made parties in the writ
petition, the same deserves to be dismissed.
5.3. Continuing his argument he proceeded to submit on
merit that since the Odisha Revised Scale of Pay Rules,
2008 is framed in exercise of powers conferred under
proviso under Article 309 of the Constitution of India,
the same is not applicable to the employees working
under different schematic programmes. He then
submitted that the contract of engagement of the
petitioners provided for payment of remuneration and
they are not employees under the Government rather
W.P.(C) No.14619 of 2019 Page 33 of 69
they were working under projects, which was jointly
funded by the Central Government and the State
Government.
5.4. In such view of the matter, it is vehemently contested by
the opposite parties that the claim of the petitioners for
availing benefits of the Odisha Revised Scale of Pay
Rules is thoroughly misconceived and the writ petition is
liable to be dismissed.
Analysis and discussion:
6. This Court first takes up the objection raised by Sri
Satyabrata Mohanty, learned Additional Government
Advocate with respect to non-joinder of parties.
6.1. Glance at the prayers made by the writ petitioner in the
writ petition, it transpires that the petitioners have
claimed relief against the State Government, but not
against the Central Government.
6.2. Furthermore, the petitioners have questioned the
propriety of Office Order dated 01.08.2019 issued by the
Special Secretary to the Government of Odisha in
Department of School and Mass Education, vide
Annexure-17. The contentions and averments along with
arguments of the petitioners would lead this Court to
construe that such decision taken by the State
Government in School and Mass Education Department
W.P.(C) No.14619 of 2019 Page 34 of 69
would nullify the effect of decisions taken in the different
Executive Committee Meetings wherein different
departments took part including the School and Mass
Education Department and the Finance Department.
6.3. This Court is called upon to examine the sustainability
of Office Order dated 01.08.2019 issued by the Special
Secretary to Government of Odisha in Department of
School and Mass Education.
6.4. Under such situation, the contention of the learned
Additional Government Advocate that the writ petition is
liable to be dismissed in limine for non-joinder of parties
is repelled.
7. On scrutiny of minutes of different meetings as referred
to and relied on by Sri Budhadev Routray, learned
Senior Advocate appearing for the petitioners, it could
not be disputed by the learned Additional Government
Advocate appearing for the opposite parties that
representatives of the Finance Department and the
School and Mass Education Department were present. It
is found that conscious decision were taken at each level
in the presence of representative of the Finance
Department besides other Departments such as, Higher
Education Department, Panchayati Raj Department,
Women & Child Development Department, School and
Mass Education Department, Labour & Employment
W.P.(C) No.14619 of 2019 Page 35 of 69
Department, Elementary Education, Secondary
Education, National Council of Educational Research &
Training, National University of Education Planning &
Administration, SC & ST Welfare Department,
Government of India, Ministry of Human Resources
Department.
7.1. As is revealed from Annexure-A to the proceeding, in the
Meeting of the 4th Governing Body of OPEPA held on
29.10.2013, it was decided that the remuneration of
employees of the OPEPA inter alia would be fixed “at par
with the initial pay structure including the D.A of similar
types of posts in the State Government”. It was also
decided for enhancement of remuneration and to extend
the benefit of career advancement to the employees of
OPEPA.
7.2. At this juncture, it is relevant to take note of following
relevant clauses/provisions of “Odisha Primary
Education Programme Authority– Memorandum of
Association” as made available at Annexure-A/4 of the
counter affidavit:
“Odisha Primary Education Programme Authority
Memorandum of Association
4. Objects:
The Orissa Primary Education Programme Authority
shall act as an autonomous and independent bodyW.P.(C) No.14619 of 2019 Page 36 of 69
for implementation of the Orissa Primary Education
Programme as outlined in the project document
published by the Government of Orissa and its
revised versions that may be prepared on the basis
of joint review from time to time.
5. Functions:
In pursuance of the above objects, the function of the
authority to be undertaken directly by Authority
office through its staff or sponsored/supported by it
through other institutions, agencies or individuals,
shall be as follows:
***
(e) to bring about effective decentralization in
basic education by involvement of the people
through a process of training and awareness
building and creation of appropriate structures
formal or otherwise.
***
(m) to create academic, technical, administrative
and managerial and other posts in the
Authority and to make payments for the same
in accordance with the rules and regulations of
the Authority.
(n) to make rules and regulations for conduct of
the affairs of the Authority and add or amend,
vary or rescind them from time to time.
***
(p) to incur expenditure after drawing of a budget
and with due regard for economy and probity.”
W.P.(C) No.14619 of 2019 Page 37 of 69
6. Property and Assets:
The income and property of the Authority howsoever,
derived shall be applied towards promotion of the
objects thereof as set forth in this Memorandum of
Association, subject nevertheless in respect of the
expenditure of grants made by the Government of
Orissa or Government of India, to such limitations as
these Government may from time to time, impose. No
portion of the income and property of the Authority
shall be paid or transferred directly or indirectly, by
way of dividend, bonus or otherwise, howsoever by
way of profit, to the persons who at any time have
been members of the Authority or to any of them or
to any person claiming through them provided that
nothing herein contained shall prevent the payment
in good faith of remuneration to any member thereof
or otherwise persons in return for any service
rendered to the Authority for travelling allowance,
halting or other similar charges.
7. Government Powers:
State Government and the Central Government shall
jointly appoint one or more persons to review the
work and progress of the Authority and to hold
enquiries into the affairs thereof and to report
thereon in such a manner as the Government may
stipulate and upon receipt of any such report, the
Government may jointly take such action and issue
such directions as they may consider necessary in
respect of any of the matters dealt within the report
and the Authority shall be bound to comply with
such directions. In addition, the Central Government
or State Government may at any time issue
directives or matters of policy to the Authority and
W.P.(C) No.14619 of 2019 Page 38 of 69
the latter shall be bound to promptly comply with
such directives. Where there is divergence of views
between the State Government and Central
Government, in views of the Central Government
would prevail.
“Odisha Primary Education Programme Authority
Rules and Regulations
4. Definitions:
(v) „Executive Committee‟ shall mean the body which is
constituted as such under Rule 21 as the Executive
Committee of the Authority.”
34. Powers and Function of Executive Committee:
It shall be responsibility of the Executive Committee
to endeavour to achieve the objects of the Authority
and to discharge all its functions. The Executive
Committee shall exercise all administrative, financial
and academic authority in this behalf, including
powers to create posts of all description and make
appointments thereon in accordance with the
regulations.
35. The Executive Committee:
The Executive Committee shall have under its control
the management of all affairs and funds of the
Authority.
36. The Executive Committee shall have the powers and
responsibilities in respect of the following:
(i) To frame regulations with the approval of the State
Government.
W.P.(C) No.14619 of 2019 Page 39 of 69
(ii) To frame bye-laws for the conduct of activities of the
Authority in functioning as per its stated objectives.
44. The Executive Committee may delegate, to the
Chairman, State Project Director or any of its
members and/or to a Committee/Group or any other
Officer of the Authority such administrative, financial
and academic powers and impose such duties as it
deems proper and also prescribe limitations within
which the powers and duties are to be exercised or
discharged.
Regulations
45. Subject to any specific directions or the Authority
and keeping in view the overall advice of the Central
Government and the State Government the Executive
Committee shall have the powers to frame and
amend regulations, not inconsistent with these rules
for administration and management of the affairs of
the authority and without prejudice to the generality
of this provision, such regulations may provide for
the following matter:
(i) Service matters pertaining to officers and staff
including creation of posts, qualifications, selection
procedure, service conditions, pay and emoluments,
disciplinary controls as well as classification, control
and Appeal Rules.
(ii) Important financial aspects including formulation of
budget, purchase procedures, delegation of financial
powers, investment of funds, maintenance of
accounts and audit, T.A. Rules etc. andW.P.(C) No.14619 of 2019 Page 40 of 69
(iii) Such other matters as may be necessary for the
furtherance of the objects and the proper
administration of the affairs of the Authority.
Provided that for the purpose of this Rule, following
Guidelines would be kept in view while creating the posts
and formulating the Service and Financial Regulations:
(a) Scales of pay in respect of the posts to be created by
the Executive Committee shall correspond either to
the Central Government or State Government scales
of pay.
Bye-Laws
52. Funds of the Authority:
The funds of the Authority shall consist of the following:
(i) Grants-in-aid made by the Central Government and
the State Government for furtherance of the Objects
of the Authority;
(ii) Contribution from other sources and
(iii) Income from assets of the Authority
(iv) Receipts of the Authority from other sources and
(v) Grants donations or assistance of any kind from
foreign Governments and other external agencies,
with prior approval of the Central Government.”
7.3. Apposite it is to have glance at Odisha Primary
Education Programme Authority– Service Rules and
Regulations, 1996, as found place at Annexure-B/4 of
the counter affidavit:
W.P.(C) No.14619 of 2019 Page 41 of 69
“Odisha Primary Education Programme Authority
Service Rules and Regulations
2. Scope:
These Regulations shall apply to the officers and
staff of the Orissa Primary Education Programme
Authority.
4. Category of Staff and Conditions of Selection:
(a) The employees shall be classified into Group A, B, C
and D on the following basis:
Group A– All posts in the pay scale the maximum of
which is not less than Rs.4000/-
Group B– All post in the pay scale the maximum of
which is less than Rs.4000/- but not less
than Rs.3500/-
Group C– All posts in the pay scales the maximum
of which is over Rs.1025/- and less than
Rs.3500/-
Group D– All posts in the pay scales the maximum
of which is Rs.1025/- or lessProvided that in respect of retired officers appointed
on contract basis with lump sum and on re-
employment terms their classification will be as per
the scale of pay from which they retired. All
orderlies, peons, sweepers, shall be classified as
Group-D irrespective of the fixed amount they get as
remuneration and stenographers, data entry
operator, office assistance and drivers appointed
with lump sum amount shall be classified as Group-
C irrespective of the amount they have draw as
W.P.(C) No.14619 of 2019 Page 42 of 69
monthly remuneration when the appointment is not
against a time scale.
(b) Nature of Appointment:
All the appointments shall be temporary in nature
and terminable either on close of the project work or
close of the period for which their appointment is
made whichever is earlier. Provided that the
appointing authority has extended the period of
appointment of an officer from time to time suspect to
the total period being co-terminus with the date of
completion of the project as a whole or completion of
a component of the project for which the appointment
is made whichever is earlier subject to efficiency and
good conduct assessed annually.
(c) Engagement of staff:
Engagement of staff by the Authority may be of
following categories:
***
(ii) Engagement on contract:
***
(b) Engagement of directly recruited person
on contract basis.
***
(e) The scale of pay prescribed for the posts to be filled
up on deputation, on reemployment terms and on
contract basis either directly recruited or retired
persons on fixed lump sum amount to be fixed are
given in Appendix-A. notwithstanding prescription of
W.P.(C) No.14619 of 2019 Page 43 of 69
these time scales the Authority reserves the right to
appointing persons against these scale on lump sum
amount.
9. Pay fixation:
(a) the directly engaged staff appointed on fixed sum
shall draw the fixed amount after they join their post
and shall continue to draw the same until the
amount is revised by the Executive Committee. No
dearness allowance shall be paid in these cases.”
7.4. Raising the issue whether the decision taken in the 30th
Executive Committee Meeting of OPEPA held on
06.03.2014 with respect to service conditions as well as
the consequential action with regard to the career
advancement of those employees of OPEPA could be set
at naught by way of passing the impugned Office Order
dated 01.08.2019, Sri Budhadev Routray, learned Senior
Advocate made suave submission that Memorandum of
Association (vide Annexure-A/4 to the counter affidavit)
of the OPEPA, subsequently renamed as OSEPA, clearly
envisages that the OPEPA/OSEPA shall act as
autonomous and independent entity for implementation
of the Odisha School Education Programmes. Clause
5(n) of the Memorandum of Association lays down that
the function of the Authority inter alia is to frame Rules
and Regulations for conduct of the affairs of the OPEPA.
Said provision empowers the OPEPA to add or amend,
vary or rescind them from time to time. The “Odisha
W.P.(C) No.14619 of 2019 Page 44 of 69
Primary Education Programme Authority– Rules and
Regulations” as enclosed to the counter affidavit
delineates “Powers and Functions of the Executive
Committee” at Rule 34, wherein it has been specified
that “it shall be the responsibility of the Executive
Committee to endeavour to achieve the object of the
Authority and to discharge all its functions. The
Executive Committee shall exercise all administrative,
financial and academic authority in this behalf,
including powers to create posts of all description and
make appointments thereon in accordance with the
regulations”. Rule 44 of said “Rules and Regulations”
envisages that the Executive Committee has the power
to delegate to the Chairman, State Project Director or
any of its members and/or to a Committee/Group, or
any other Officer of the OPEPA such administrative,
financial and academic powers and impose such duties
as it deems proper and also to prescribe limitations
within which the powers and duties are to be exercised
or discharged. Regulation 45 of said “Rules and
Regulations” confers powers in respect of certain aspects
inter alia Scales of Pay in respect of the posts to be
created by the Executive Committee that correspond to
the Central Government or the State Government Scales
of Pay.
W.P.(C) No.14619 of 2019 Page 45 of 69
7.5. From the preamble of the Memorandum of the
Association and the Rules and Regulations as referred
above makes it unambiguous that the OPEPA is an
autonomous and independent body without having any
control of the State Authorities, rather the Executive
Committee which consists of 17 numbers of senior
officers of the State Government. The OPEPA has framed
Rules and Regulations by way of the Memorandum of
Association and by dint of Rule 21 thereof, the Executive
Committee was constituted. Such Committee is
conferred and invested with all the powers to take
decision including administrative and financial matters.
It is also discernible from the above that the provision
provided under Rule 34 that the conditions of the service
of the employees of OPEPA are also within the domain of
the Executive Committee. Under said Rule 34, the
powers and the functions of the Executive Committee
has been provided by laying down that it shall be the
responsibility of the Executive Committee to make
endeavour to achieve the objects of the Authority and to
discharge all its functions. Rule 35 provides that the
Executive Committee shall have under its control the
management of all the affairs and funds of the OPEPA.
Under Regulation 45 of the Regulation power has been
vested with the Executive Committee and accordingly,
the Executive Committee has the powers to frame and
amend regulations. Said regulation inter alia empowers
W.P.(C) No.14619 of 2019 Page 46 of 69
that “service matters pertaining to officers and staff
including creation of posts, qualifications, selection
procedure, service conditions, pay and emoluments,
disciplinary control as well as Classification, Control &
Appeal Rules”.
7.6. Conjoint reading of different provisions unequivocally
speaks that the Executive Committee, the apex body,
has every power not only to make any Rules and
Regulations but also to discharge the administrative and
financial powers on behalf of the OPEPA.
7.7. In the Meeting of the 4th Governing Body of OPEPA held
on 29.10.2013– presided over by the Hon‟ble Chief
Minister and in presence of senior officers of different
departments, as can be seen from minutes of
proceedings– while taking decision for implementation
of Career Advance Policy and enhancement of salary at
par with the State Government employee by referring to
Regulation 45 of the Memorandum of Association (Rules
and Regulations of OPEPA) it was held that scale of pay
in respect of the post to be created by the Executive
Committee shall corresponding to either to the State
Government or the Central Government scale of pay.
After due deliberation it was decided to have parity with
the salary structure of the State Government employees.
It was also recommended that whenever there happened
to be any enhancement of D.A. by the State Government
W.P.(C) No.14619 of 2019 Page 47 of 69
that would also be extended to the OPEPA employees.
This enhancement to be added to the base remuneration
of the OPEPA Employees. Such recommendation was
made on the basis of the Report submitted by a
Committee constituted in terms of Notification dated
29.07.2013. The Executive Committee has accepted
such recommendation in the proceeding of the 30th
meeting of the OPEPA held on 06.03.2014, which was
implemented in terms of such decision by extending
benefits to the employees of OPEPA, as has been
admitted by the opposite parties in their counter
affidavit.
7.8. In such background it is also borne on the records that
the Joint Secretary to Government in School and Mass
Education Department was also one of the members in
the Meeting held on 19.11.2013. Hence, the impugned
order to freeze the remuneration of the petitioners (who
are the employees of erstwhile OPEPA renamed OSEPA)
at current level with (retrospective) effect from
31.03.2019 cannot be sustained and is, hence, liable to
be quashed. Unilateral decision of the Government
without taking the Executive Committee into confidence
would prejudice larger interest of employees of the
OPEPA/OSEPA.
7.9. It is apparent from careful scrutiny of the counter
affidavit that the opposite party No.4 in its reply does not
W.P.(C) No.14619 of 2019 Page 48 of 69
deny the fact of decision being taken in the Meeting of
Executive Committee held on 06.03.2014 regarding
career advancement of the OPEPA employee. Rather, it
has been clearly admitted that the decision for the
Executive Committee in the Resolution passed in the
30th Executive Committee Meeting dated 06.03.2014 has
been implemented. But at the same time in the counter
affidavit it could not have been taken as a stand that
such decision of the Executive Committee is not
consistent with the Rules.
7.10. In this context, it may be worthwhile to refer to a co-
ordinate Bench decision of this Court rendered in the
case of Purna Chandra Bag and Others Vrs. State of
Odisha and Others, W.P.(C) Nos.20940, 21425, 24708,
26700, 26702, 26703, 26704, 26705, 26706, 26708,
26709, 28876 of 2020 and W.P.(C) Nos.24233, 30728 &
33966 of 2021, vide Judgment dated 02.08.2023,
relevant portion of which is quoted hereunder:
“8. Having heard learned counsel for the parties and
after going through the materials available on
record, it is found that the Executive Committee in its
26th meeting held on 16.02.2010 though approved
for creation of the posts of Accountant-cum-Data
Entry Operator to be filled up at the block level, but
the said post was designated as Accountant-cum-
Support Staff by the opposite party No.2 while
issuing the communication dated 07.02.2011 under
Annexure-1. Basing on the said communication
W.P.(C) No.14619 of 2019 Page 49 of 69
though it is not disputed that all the petitioners were
engaged as Accountant-cum-Support Staff at the
block level pursuant to the advertisement issued by
the concerned Collector-cum-Chairman, Sarva
Siksha Abhiyan in different districts, but taking into
account the qualification prescribed for Accountant
at the block level and that of the Accountant
engaged in the State Project Office and District
Project Office, this Court is of the view that the
qualification prescribed for engagement of the
Accountants at the block level as well as in the
district level and State level are similar. It is also
found from the record that as per Regulation 45(a) of
the 1996 regulation, it has been clearly provided
that the Scale of Pay in respect of the post to be
created by the Executive Committee shall correspond
either to the Central Government or State
Government scale of pay. It is also found from the
record that the Executive Committee in its 30th
meeting held on 06.03.2014 vide Item No.6.4 also
approved to extend the benefit enjoyed by the
different employees as per OPEPA Employees
Service Rules and Regulations 1996 to the block
level Accountant engaged at BRCs level.
8.1. Therefore, in view of the provisions contained under
Regulation 45(a) of the Rules & Regulation, 1996
and the decision taken by the Executive Committee
in the proceeding of the 30th meeting held on
06.03.2014, the rejection of the claim of the
petitioners to get the benefit of pay parity with that
of the Accountants working in the State level and
District level as per the considered view of this Court
is not legal and justified. Therefore, this Court is
inclined to quash the said rejection made by
W.P.(C) No.14619 of 2019 Page 50 of 69
opposite party No.3 vide Order dated 10.07.2020,
which is impugned in WP(C) No.20940 of 2020 and
quash the same.”
7.11. It is manifest from the counter affidavit that the Special
Secretary to the Government of Odisha has made
attempts to justify his action in directing to freeze the
remuneration of the employees of the OPEPA. While
justifying such action he has referred to Regulation 45.
By way of Amendment on 31.7.2019 it has been
provided that “such other matters as may be necessary
for the furtherance of the objective and proper
administration of the affairs of the authority certain
guidelines will kept in view while creating the post and
formulating the service and financial regulation”. All
decision relating to creation and up-gradation of post
and fixation of pay and involvement having financial
implication would have to be placed before the School
and Mass Education Department for approval of
Government. Such amendment of Regulation 45 has
absolutely no application to the fact situation of the case
for the reason that:
i. Such a provision has been made by way of
amendment on 31.07.2019, which is prospective in
nature inasmuch as no power has been cited by the
opposite parties to demonstrate that the
amendment could be given retrospective effect. TheW.P.(C) No.14619 of 2019 Page 51 of 69
rights of the employees that existed prior to
amendment could not be taken away or imperilled.
ii. The decision of the Executive Committee for
enhancement of salary and extension of other
benefits in the Meeting held on 06.03.2014 with
reference to the powers conferred under the
Memorandum of Association, Regulation and Rules,
as were prevalent at that relevant point of time,
could not be dispensed with by assuming
retrospective operation of the amendment.
iii. By virtue of amendment and introduction of clause
(iii) to Regulation 45, it can only be said that such
provision can be made applicable in the context of
creation of new posts and formulating the service
and financial regulation. In such eventuality, the
approval of School and Mass Education
Department of the Government may be necessary.
Nonetheless, in the case at hand, question of
creation of the post or the question of formulating
the service and financial regulation did not arise;
rather the decision which was taken in the year
2014 by the competent authority, i.e. the Executive
Committee, being empowered in that regard. Such
decision has also been implemented by the OPEPA
by extending the benefit to all eligible employees
including the petitioners. The impugned order
W.P.(C) No.14619 of 2019 Page 52 of 69
dated 01.08.2019 (Annexure-17), therefore, could
not have been passed by lightly brushing aside
such important decision affecting the rights of the
OPEPA employees having impact on civil
consequences.
iv. With regard to application of amendment with
retrospective effect, it may not require any
authority to be referred to; nevertheless, it would
suffice to quote from Indian Latex Fibre Corporation
Vrs. Commissioner of Sales Tax, 2007 SCC OnLine
Ori 399 (Division Bench of this Court), as is trite:
“It is well known that normally a statute operates
prospectively. The Legislature in its plenary power
can also legislate retrospectively, but in such cases
the statute must say so or it must appear by
necessary implication. (See Keshavan Madhava
Menon Vrs. State of Bombay reported in AIR 1951
SC 128 at page 130). This principle has been
subsequently reiterated by the honourable Supreme
Court repeatedly.”
v. In such view of the matter, the specious plea of the
Government of Odisha in School and Mass
Education that “the employees of OPEPA are
drawing their remuneration as per Odisha Revised
Scales of Pay Rules, 2008 vide their Office Order
No.7970 dated 20.09.2014 without the approval of
the Government and concurrence of Finance
W.P.(C) No.14619 of 2019 Page 53 of 69
Department” cannot withstand judicial scrutiny
inasmuch as the Government Officers have
participated and concurred with the decision taken
in the Meetings of the Executive Committee of the
OPEPA.
vi. Having participated in the Meetings, the Officers of
the Government Departments endorsed the
decision taken therein and implemented the same
since 2014, at this stage the Government of Odisha
in School and Mass Education cannot turn around
to resile from such a decision without adhering to
due process of law. Doing so would not be in the
larger interest of the employees.
vii. In this context it may be apposite to extract a
passage from Chowhan Machinery Mart Vrs. State
of Orissa, 2008 SCC OnLine Ori 596:
“The honourable Supreme Court in Dabur India Ltd.
Vrs. State of Uttar Pradesh, AIR 1990 SC 1814,
observed that Government, Central or State, cannot
be permitted to play dirty games with the citizens of
this country to coerce them in making payments
which the citizens were not legally obliged to make.
If any money is due to the Government, the
Government should take appropriate steps, but it
should not take extra-legal steps or adopt the course
of manoeuvring. Because of the above
discontentment expressed by the Bar it has become
necessary to provide guidelines for just exercise of
W.P.(C) No.14619 of 2019 Page 54 of 69
the power of Revenue authorities. To prevent the
abuse of power and to see that it does not become a
new despotism, courts are gradually evolving the
principles to be observed while exercising such
power. New problems call for new solutions.”
viii. The Officers, who are responsible to take decisions
at the Government level must see that the adequate
measures and safeguards have been taken into
consideration to obliterated already implemented
decisions. The manner in which they were extended
to the employees, without following the legally
established course the benefits so extended to the
employees could not be dispensed with.
ix. In case any deviation is intended, there must be
plausible explanation and such intention must be
reflected by taking conscious decision with the
participation of such other Officers who were
present in the Meetings where decision to extend
the benefits to the OPEPA employees was taken.
x. In this context it deserves to have reference to
Section 22 of the Odisha General Clauses Act,
1937, provision of which is reproduced hereunder:
“Power to make to include power to add to, amend,
vary or rescind, orders, rules or by-laws.–
Where, by an Odisha Act, a power to make or issue
notifications, orders, schemes, rules, by-laws orW.P.(C) No.14619 of 2019 Page 55 of 69
forms, is conferred, then that power includes a
power exercisable in the like manner and subject to
the like sanction and conditions, (if any) to and to,
amend, vary or rescind any notifications, orders,
schemes, rules, by-laws or forms so made or
issued.”
xi. The reason for deviating from the decision taken
way back in 2014 and subsequent thereto by virtue
of Office Order dated 01.08.2019 (Annexure-17)
depicting unilateral decision at the behest of the
School and Mass Education Department “to freeze
the existing remuneration at the current level, i.e.,
31.03.2019” is bound to materially prejudice the
employees‟ rights. No provision could be shown by
the learned Additional Government Advocate
demonstrating conferment of such power under
any statute or the Memorandum of Association
which comprehended Rules and Regulations to
obliterate the benefit already extended to the
employees of OPEPA.
7.12. Since the OPEPA is an “Autonomous Body” and has
been conferred with independent power, there cannot be
any interference to such power and function of the
Executive Committee of the OPEPA, subject to the
manner suggested in the Odisha General Clauses Act.
Hence, the action as spelt out in the Office Order dated
W.P.(C) No.14619 of 2019 Page 56 of 69
01.08.2019 issued by the Special Secretary is not in
consonance with law.
7.13. As is made abundantly clear from the School and Mass
Education Notification No.17364–XI-SME-SSA-30/
2013-S&ME, dated 29.07.2013 (Annexure-10) the
decision with regard to enhancement of pay was taken in
the duly constituted Executive Committee and the
decision has been implemented based on the
recommendation of High-Power Committee constituted
in terms of said Notification dated 29.07.2013.
Therefore, no infirmity in such decision being shown nor
does the impugned order depict exigency to vary with
such decision taken by the Executive Committee, this
Court is inclined to set aside the impugned Office Order
dated 01.08.2019.
8. By referring to outcome of the various Meetings of the
OPEPA as has already been discussed in foregoing
paragraphs, it is highlighted that the impugned Office
Order dated 01.08.2019 has no foundational factor to
hold water. It is forcefully submitted that the reason
ascribed therein that the OPEPA employees draw higher
remuneration/pay than that is extended to the State
Government employees is not based on facts and figures.
Such a reason is contrary to decisions taken in the
Meetings of the Executive Committee where other
departmental authorities took part including the Officers
W.P.(C) No.14619 of 2019 Page 57 of 69
of the School and Mass Education Department and the
Finance Department.
8.1. Conjoint reading of different Rules, Regulations and
Service Rules as culled out for discussion on merit of
this case, it is but unambiguous that under Rule 44 of
the Memorandum of Association (Rules and Regulations)
the Executive Committee could delegate to the
Chairman, State Project Director or any of its members
and/or to a Committee/Group, or any other Officer of
the OPEPA/ OSEPA administrative, financial and
academic powers and under Regulation 45 thereof the
Executive Committee have powers to frame and amend
Regulations inter alia with respect to financial powers. In
Rule 21 of the said Memorandum of Association the
constituent members have been enumerated. The
opposite parties have not disputed nor denied the
constitution of the Executive Committee where the
Officers of the School and Mass Education and the
Finance Department participated in the decision making
process. Thus, there was no requirement for taking
further concurrence of the Finance Department.
8.2. Query of this Court in this regard could not be answered
by the learned Additional Government Advocate and no
provision is cited before this Court to suggest that after
the Executive Committee took a decision in presence of
Officers of different Departments of the Government
W.P.(C) No.14619 of 2019 Page 58 of 69
including the Finance Department touching the financial
implication, there is requirement of concurrence of the
Department of Finance.
8.3. Therefore, this Court is of the considered opinion that
the reason for freezing the existing remuneration for lack
of concurrence of the Finance Department is liable to be
obliterated.
8.4. It may be significant to have regard to Letter bearing No.
F.13-5/2001 DPEP-3, dated 22.11.2001 issued by the
Ministry of Human Resources Development, wherein it
has been laid down as follows:
“No. F. 13-5/2001 DPEP-3
Government of India
Ministry of Human Resources Development
(Department of Elementary Education & Literacy)
EE-I Bureau***
New Delhi, the November 22. 2001
To
The Accounts Officer
Pay & Accounts Office
Ministry of Human Resource Development
Departraent of Elementary Education and Literacy
New Delhi.
Subject: District Primary Education Programme–
Release of 1st instalment of grant to Orissa
Primary Education Programme Authority,
W.P.(C) No.14619 of 2019 Page 59 of 69
Bhubaneswar (Orissa) for implementation of
District Primary Education Programme for
Expanston of district (phase-II) during the year
2001-2002.
Sir,
I am directed to say that the Annual Work Plan and
Budget for 2001-2002 in respect of Orissa Primary
Education Programme Authority, Bhubaneswar ahs
been approved for a sum of Rs.6593.13 lakhs for
implementation of District Primary Education
Programme for Expansion Districts (phase-II). The
central share (85%) of Rs. 6593.13 lakhs works out
to Rs. 5600.00 lakhs.
2. I am accordingly directed to convey the sanction of
the President to the release of an amount of
Rs.15,00,00,000/- (Rupees fifteen crore only) as first
instalment of grant to State Project Director, Orissa
Primary Education Programme Authority,
Bhubaneswar-751001 for implementation of District
Primary Education Programme in expansion districts
(phase-II) during the year 2001-2002.
3. The sanction is subject to the conditions laid down in
para-8 of the minutes of the EFC meeting circulated
vide this Ministry communication number F4-3/99-
DPEP-4 dated 16.08.2001.
4. The expenditure shall be incurred according to the
parameters and norms as laid down in DPEP
guidelines.
5. The amount sanctioned will be drawn by the
drawing and disbursing officer (Grants) Ministry of
Human Resource Development, Department of
W.P.(C) No.14619 of 2019 Page 60 of 69
Elementary Education and Literacy, Government of
India, New Delhi on a grant-in-aid bill for
disbursement to the guarantee, through a crosse3d
bank draft (Account Payee) payable to the State
Project Director, Orissa Primary Education
Programme Authority, Bhubaneswar 751001 during
the current financial year.
6. The grant shall be subject to the following
conditions:
(i) It shall be drawn during the current financial
year before 31st March, 2002 and shall be
utilised within a reasonable period from the
date of its drawal.
(ii) It shall be utilised only for undertaking
activities proposed in the Work Plan for the
year 2001-2002 and approved by the
Government of India on the basis of norms of
expenditure.
(iii) The assets, if any to be acquired wholly or
substantially out of the grant should not
without the prior sanction of the Government of
India, be disposed of encumbered or utilised for
purposes other than those for which the grant
has been sanctioned.
(iv) Orissa Primary Education Programme
Authority, Bhubaneswar shall maintain a
separate and proper account of the expenditure
incurred out of the grant and the accounts so
maintained shall be open to audit by the
Comptroller and Auditor-General of India or byW.P.(C) No.14619 of 2019 Page 61 of 69
any authority deputed by him for the purpose,
as per rules.
(v) The Society shall furnish to this department
item-wise statement of expenditure on a
quarterly basis and other reports in approved
formats. The Society will submit annual
detailed progress report of the project within
one month of the close of the financial year. An
annual audited statement of accounts along
with a certificate of chartered accountant and
authorised signatories of the society and
approved by the society in original will be
submitted to the Ministry within 3 months from
the close of the financial year. The balance
amount of grant for 2001-2002 shall be
released only on receipt of unaudited
statement of accounts showing 75% or more
expenditure out of the earlier instalment of
grant.
(vi) A register of assets acquired wholly or
substantially out of the grant shall be
maintained in prescribed form and certified
copy of the register in respect of the assets
acquired should be sent to this Ministry not
latter than one month from the close of the
financial year. Such copies should continue to
be furhished even after the government‟s grant
to the society has seized. The statement should
relate not only to the assets acquired during
the year to which it relates but to all previous
assets too created wholly or substantially out
of the government‟s grant up to the end of the
period to which the return relates. For purposesW.P.(C) No.14619 of 2019 Page 62 of 69
of determining whether an asset has been
created substantially out of the government
grant it is not necessary that the amount
utilised out of the government grant should
exceed 50%.
(vii) The grant is subject to the condition that the
terms and conditions of services of the
employees of the Society, be normally
according to terms and conditions applicable to
similar categories of employees in the State
Government and not exceeding those
admissible to similar categories of Central
Government employees.
(viii) The accounts and other records of the Orissa
Primary Education Programme Authority,
Bhubaneswar shall be open to inspectiboyn an
officer of the Ministry of Human Resource
Development or any other person deputed by
the Ministry for this purpose.
(ix) The Orissa Primary Education Programme
Authority, Bhubaneswar shall follow strictly all
instructions issued by the Government of India
from time to time on reservations of posts of
Scheduled casts, Scheduled Tribes. The staff
appointed at state and district level be on
deputation or on contract basis only for a
limited period.
(x) The Orissa Primary Education Programme
Authority, Bhubaneswar shall fully implement
the official language policy of the Union
Government that is it shall fully comply with
official language Act- 1963 and OfficialW.P.(C) No.14619 of 2019 Page 63 of 69
language (use for the official purposed of the
Union), Rules, 1976 etc.
(xi) The guidelines given by the GOI regarding
monitoring, management and financial and
other procedures to be followed in the execution
of the project will be followed.
7. The expenditure will be debitable to demand no-46/
Department of Elementary Education and Literacy-
Major head 2202; general education 0.1- Elementary
education 800- other expenditure,19- District
Primary Education Programme 19, 00.31- Grants-in-
aid-2001-2002(plan).
8. The pattern of assistance has been approved by the
Ministry of Finance and this sanction is being issued
in conformity with the Rules and Regulations
approved by the Ministry of Finance. The grantee
institution is located in the Orissa circle of accounts.
9. This sanction issues in exercise of the delegated
powers in consultation with integrated finance
divisions vide their DY No. 8918/2001-IFD dated
23.10.2001 and the funds have been cerified by IF I
Section vide their DY No. 5533-0/01-IIF dated the
20.11.2001.
Yours faithfully,
(I.S.Kalijai)
Desk Officer.”
8.5. Aforesaid Guidelines have further been clarified vide
Letter dated 26.06.2003, which reads as follows:
W.P.(C) No.14619 of 2019 Page 64 of 69
“F.2-42/2003-EEIII
Government of India
Ministry of Human Resource Development
Department of Elementary Education & Literacy***
New Delhi, June 26, 2003.
Subject: Clarification on sustaining of DPEP
interventions in SSA after closure of DPEP.
A question has been raised on the sustaining of DPEP
interventions under SSA. Following, guidelines, as
approved by the Expenditure Finance Committee of
Government of India, are issued for the purposes of
planning and appraisal:
(i) The liability of DPEP relating to salary of teachers
and BRC/CRC personnel would have to be taken
over by the State Government. So, no salaries can be
provided under SSA for teachers and BRC/CRC
personnel appointed under DPEP.
(ii) For arriving at the requirement of BRC/CRC
personnel under SSA, the BRC/CRC resource
persons already provided under DPEP should be
deducted from the entitlement of the District as per
SSA norms (20 or 10 depending on number of
schools). For example, if DPEP had 12 BRC and CRC
personnel in the Block, these 12 would have to be
sustained by the State Government and SSA would
provide for only additional 8 persons, if the
entitlement of the block was 20 to begin with.
(iii) Programme related expenditures like School Grant,
Teacher Grant, Civil Works, New Teachers, R&EW.P.(C) No.14619 of 2019 Page 65 of 69
Grant, Text Books, Innovative, IED, Maintenance
Grant, etc. can be funded under SSA.
(iv) Salary of permanent management staff under DPEP
would have to be borne by State. However,
contractual appointments and deputationists may be
borne by the SSA management structure through
fresh contract. At the time of appraisal, the full
physical and financial liabilities of the Slates under
DPEP to be borne by the State should be brought out
and concurrence of the State obtained on bearing
this liability.
Yours faithfully,
Sd/- (O.P. Chaturvedi)
Under Secretary
to the Govt. of India
Tel: 23387538″
8.6. As is discerned from aforesaid Letters of the Government
India, after closure of the District Primary Education
Programme (DPEP), the State Government is required to
bear the expenditure towards the management under
the Samagra Shiksha structure. Nothing is placed on
record by the opposite parties that prior to taking
decision vide Office Order dated 01.08.2019 (Annexure-
17) steps were taken to nullify or vary with the decisions
of Executive Committee taken earlier as discussed
hereinabove. The learned Additional Government
Advocate could not proffer explanation as to the
requirement of concurrence of the Finance Department
W.P.(C) No.14619 of 2019 Page 66 of 69
after decision on financial matters taken in the
Executive Committee Meetings in presence of Officers of
the Finance Department and the School and Mass
Education Department. Rather this Court on minute
scrutiny of Rules and Regulations as forming part of the
Memorandum of Association and the Service Rules and
Regulations observes that financial autonomy was
delegated to the Executive Committee. In absence of any
step taken by the Government of Odisha in School and
Mass Education to review the decisions taken in the
Executive Committee of the OPEPA/OSEPA, unilateral
decision of the Government vide Officer Order dated
01.08.2019 to freeze the “existing remuneration” after
years of implementation of decisions taken in the
Executive Committee with respect to pay and career
advancement is unwholesome and untenable.
Conclusion:
9. The reasons for freezing the remuneration of the
employees of OPEPA/OSEPA as ascribed to in the Office
Order dated 01.08.2019 of the Government of Odisha in
School and Mass Education, impugned in the writ
petition at Annexure-17, are:
i. The employees of OPEPA are drawing their
remuneration as per Odisha Revised Scales of Pay
Rules, 2008 vide Office Order No.7970, dateW.P.(C) No.14619 of 2019 Page 67 of 69
20.09.2014 without the approval of the
Government and concurrence of Finance
Department;
ii. The employees of OPEPA are schematic employees
but they are drawing gross remuneration at a
higher rate due to addition of certain perks which
are extended to any State Government employee;
iii. The dynamic D.A. structure twice a year is not
availed by any schematic employee of the State
Government. Due to gradual decrease in Central
funding, the financial burden has also been
increasing for the State Government.
9.1. Aforesaid reasons, as has already been discussed above,
cannot be countenanced inasmuch as after conscious
decision being taken in different Meetings and having
implemented the decisions since long, in the year 2019
unilateral decision by the School and Mass Education
could not have been taken to nullify decisions taken in
Meetings held in the duly constituted Executive
Committee in the presence of Officers of different
departments including the School and Mass Education
Department and the Finance Department.
10. In the wake of discussions made supra and for the
reasons cited hereinabove taking note of decisions taken
in various Meetings held by the Executive Committee
W.P.(C) No.14619 of 2019 Page 68 of 69
constituted in terms of the Rules and Regulations
forming part of the Memorandum of Association and the
Service Rules and Regulations, this Court sets aside the
Office Order dated 01.08.2019 (Annexure-17) issued by
the Special Secretary to the Government of Odisha in
Department of School and Mass Education.
11. Accordingly, the writ petition stands disposed of, but in
the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: LAXMIKANT High Court of Orissa, Cuttack
MOHAPATRA
Designation: Senior Stenographer The 11th March, 2025//Aswini/Laxmikant/Suchitra
Reason: Authentication
Location: High Court of Orissa,
Cuttack
Date: 11-Mar-2025 16:08:14
W.P.(C) No.14619 of 2019 Page 69 of 69
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