Ori HC | An officer who substantially holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion; Only eligible for a ‘charge allowance’

Orissa High Court: A Division Bench of S K Sahoo and S Panda, JJ.,  allowed the review petition and held the opposite party is entitled to get the Headmaster scale of pay from 01.10.2001 onwards i.e. the period in which he has been functioning as in-charge Headmaster in Sikshya Niketan in spite of fulfilling the eligibility criteria for promotion to the Headmaster.

  The facts of the case are such that Purna Chandra Chand was appointed as a Trained Graduate

Teacher (CBZ) by the Managing Committee of the Sikshya Niketan on 21.08.1989. Due to the vacancy caused in the post of Headmaster,  the petitioner was appointed as Headmaster on 01.10.1993. While the petitioner was functioning as Headmaster, the Sikshya Niketan was notified as an aided educational institution under section 3(b) of the Odisha Education Act, 1969 (hereafter ‘1969 Act’) with effect from 01.06.1994. As per the requirement of the State authorities, the Managing Committee of the Sikshya Niketan submitted the proposal for approval of the services of the teaching and non-teaching staff of the Sikshya Niketan including the writ petitioner as Headmaster in order to enable them to receive their salary from the State Government as per Rule 9 of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter “1974 Rules”) which was thereby approved and modified later modified as the services of the writ petitioner as the Headmaster in-charge of the Sikshya Niketan with effect from 01.06.1994, but the writ petitioner was not given the Headmaster’s scale of pay, rather he was given the Trained Graduate Scale of pay. A petition was filed by the petitioner which was thereby allowed directing the State authorities, the petitioners herein, to calculate the entitlements of the writ petitioner at the scale of pay of Headmaster for the period for which he had worked as Headmaster in-charge. Aggrieved by the said order, State filed the instant review petition.

Counsel for the petitioners Mr Sandeep Parida submitted that the impugned order is contrary to the Regulation 17(2) of Chapter IX of the Regulations of Board of Secondary Education, Odisha which stipulates that for appointment of headmaster, a trained graduate in Arts or Science with a minimum seven years experience after training is necessary. It was further submitted that the impugned order is also contrary to the law laid down in Pabitra Mohan Dash v. State of Orissa A.I.R. 2001 Supreme Court 560.

The counsel for opposite parties Mr Manoj Kumar Mohanty submitted that in the law down in Pabitra Mohan Dash (supra) , the in-charge Headmaster, even if such appointment has been approved, is not entitled to get the scale of pay attached to the post of Headmaster, is obiter dicta as the same was not the issue in that case.

Issue: Whether the observation of the Hon’ble Supreme Court in the case of Pabitra Mohan Dash (supra) that the in-charge Headmaster, even if such appointment has been approved by the Competent Educational Authority, is not entitled to get the scale of pay attached to the post of Headmaster, is obiter dicta as contended by the learned counsel for the opposite party as the same was not the issue in that case or a ‘ratio decidendi’? 

Obiter Dicta and Ratio Decidendi

The expression “obiter” means ‘by the way’, ‘in passing’, ‘incidentally’. Obiter dictum is the expression of opinion stated in the judgment by a Judge which is unnecessary of a particular case. Obiter dicta is an observation which is either not necessary for the decision of the case or does not relate to the material facts in issue.

Supreme Court has defined the terms in the judgment Municipal Corporation of Delhi v. Gurnam Kaur  (1989)1 Supreme Court Cases 101

“10…..The only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative…..

  1. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative…..”

 The Court observed that the in the case of Pabitra Mohan Dash (supra) the issue was not similar as in the present case, hence the observation that the in-charge Headmaster, even if such appointment has been approved, is not entitled to get the scale of pay attached to the post of Headmaster, is a casual or passing observation which is not relevant, pertinent or essential to decide the issues involved in the said case and therefore, such casual or passing observation does not form the part of the judgment of the Court and have no authoritative value.

The Court further relied on judgment V.B. Prasad v. Manager, P.M.D.U.P. School A.I.R. 2007 S.C. 2053 and observed that that eligibility condition must be satisfied before a person is considered for promotion/appointment in respect of a particular post. It was also observed that in such a case, he does not get the salary of the higher post; but gets only what in service parlance is called a “charge allowance”. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.

The Court held “opposite party is not entitled to get the salary of the post of Headmaster for the period from 01.06.1994 till 30.09.2001 in which period he was functioning as Headmaster in-charge of Sikshya Niketan, however, he is entitled to get only ‘charge allowance’ as admissible for the said period.”[State of Odisha v. Purna Chandra Chand, 2021 SCC OnLine Ori 627, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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