Orissa High Court
State Of Odisha And Others vs Prafulla Chandra Panda And Others on 10 May, 2017
Author: S.N.Prasad
Bench: S.N.Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.3616 of 2016
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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State of Odisha and others ...... Petitioners
- Versus-
Prafulla Chandra Panda and others ...... Opposite Parties
For Petitioners : Mr. M.S.Sahoo, Addl.Govt.Advocate
For Opp.Parties : M/s Rajjeet Ray, R.K.Sahoo, S.K.Singh,
S.Sourav, A.Pradhan( for O.P.1).
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE SHRI JUSTICE S.N.PRASAD
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Date of hearing-: 3.5.2017 :: Date of judgment-10.5.2017
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S.N.Prasad,J. This writ petition is under Articles 226 and 227 of the
Constitution of India filed by the State of Odisha and its functionaries
assailing the order passed by the Odisha Administrative Tribunal,
Bhubaneswar in O.A.No.566 of 2011 whereby and where under the Tribunal
while allowing the original application has directed the authorities to
disburse the pension and gratuity on the basis of the pay which the opposite
party no.1-applicant was holding substantive post of Junior Accountant but
allowed to officiate as Head Clerk.
2. Brief facts of the case is that the opposite party no.1/applicant
was initially appointed as Junior Clerk on 4.12.1973, promoted to the post of
Senior Clerk vide order dated 13.12.1985, subsequently promoted to the post
of Junior Accountant in the month of September,2007 in the scale of pay of
2
Senior Clerk. While functioning as such, vide order dated 2.2.2009 he was
allowed to officiate as Head Clerk temporarily in the revised scale of pay of
Rs.9300-34800(PB2) against the retired vacancy of one P.K.Mishra, Head
Clerk in the office of the Working Plan Officer, Working Plan Division,
Bhubaneswar w.e.f. 15.12.2008 till his superannuation i.e. 30.4.2009. The
opposite party no.1/applicant retired on attaining age of 58 years on
30.4.2009, at that time of retirement he was drawing monthly pay of Rs.12,060 +4200(G.P.) in the scale of pay Rs.9300-34800/- as per the ORSP Rules,2008. He, after retirement, has submitted his pension papers to the Working Plan Officer, Bhubaneswar for sanction of pension and pensionary benefits in his favour as per the last pay drawn in the promotional post of Head Clerk on officiating basis, also submitted applications for sanction of provisional pension, provisional gratuity and provisional commuted value of pension. The office of the Accountant General,Odisha vide order dated 18.2.2010 sanctioned regular pension and commuted value of pension to the applicant. The office of the Accountant General, Odisha sanctioned gratuity, but in spite of sanction, amount has not been disbursed. While the matter stood thus, the authorities have issued office order dated 5.5.2010 fixing the pay of the applicant at Rs.11,620/- and G.P. Rs.2800/- per month in the scale of pay of Rs.5200-20,200/- (scale of pay of Jr. Accountant) for calculation of pension and pensionary benefits on the basis of the Rule 48 of the Orissa Civil Service(Pension) Amended Rules,2009.
The opposite party no.1/applicant being aggrieved with the order dated 5.5.2010 has approached the Tribunal on the ground that he is entitled to get pension on the basis of the last pay drawn, that is the pay scale of the post of Head Clerk in view of the provision of Rule 48 of OCS(Pension) Rules,1992 read with Clause (e) of sub-Rule(2) of Rule 33 of the Orissa Service Code.
The other ground which has been urged by the applicant is that although Rule 48 of the OCS(Pension) Rules,1992 has subsequently been clarified by virtue of the clarification issued on 5.2.2004 by the Finance Department of the Government of Odisha and the Rule 48 was amended vide 3 notification dated 9.12.2009 but on the strength of the notification dated 5.2.2004, the right of pension he is entitled to, in view of the provision of Rule 48 of the Pension Rule,1992, cannot be taken away on the principle that executive instruction cannot override the statutory provision. He further submits that although Rule 48 has been amended vide notification dated 9.12.2009 but prior to giving into effect the amended provision vide notification dated 9.12.2009 the opposite party no.1/applicant has retired from service and as such the same will not be applicable and adversely affect his right to get pension on the basis of getting higher pay while officiating in the higher post.
Learned Tribunal after accepting the plea of the applicant has passed the order quashing the decision of the authority in not granting and fixing pension on the basis of the last pay drawn.
3. The State of Odisha being aggrieved with the order is before this Court assailing the same on the ground that the opposite party no.1/applicant was holding the substantive post of Junior Accountant in the Working Plan Officer, Bhubaneswar but was allowed to officiate in the scale of pay Rs.9300-34800/- in the retired vacancy of Head Clerk in the office of the Working Plan Officer, Working Plan Division, Bhubaneswar w.e.f. 15.12.2008 till his superannuation i.e. 30.4.2009 or posting of a regular Head Clerk, whichever is earlier in pursuance to the provision under Rule 119 of the Orissa Forest Department Code read with Rule 96 of the Orissa Service Code.
The opposite party no.1/applicant was allowed to superannuate while discharging duty in officiating capacity as Head Clerk but since he was not holding the post of Head Clerk on the substantive post, he cannot be entitled to get his pension on the basis of the last pay drawn while holding higher post on officiating capacity. He submits that if the applicant would be allowed to get higher pay, it will create hardship to others who had not get promotion on regular basis and as such if other employees will be allowed to continue in officiating post in higher post they will get entitlements of promotion to the higher post and also pension. He submits that pension is 4 to be given under the provision or statute and the statute which governs is the OCS(Pension) Rules,1992 wherein provision has been made in Rule 48 which stipulates emoluments for calculation of pension and the calculation is to be made as per the emoluments as defined in Clause(e) of sub-rule(1) of Rule 2 which the Government servant has actually received or fixed notionally immediately before his retirement with effect from 1.1.2013. He refuted the argument advanced by learned counsel for the opposite party no.1/application by submitting that the interpretation of Rule 33 of the Orissa Service Code which has been made by him is not proper since „pay‟ means the amount drawn monthly by a Government servant as the pay other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in the cadre. Referring to this provision, it has been submitted that the pay which the opposite party no.1/applicant was drawing at the time of retirement pending sanction by the competent authority and he was also not substantively been promoted to the cadre of Head Clerk rather he was only directed to officiate higher post on temporary basis, hence the benefit of Rule 33(a)(i) of the Orissa Service Code cannot be given to him as has been argued by learned counsel representing the applicant.
He submits that in such circumstance, pension of such employee who has been directed to discharge duty on two posts in officiating capacity would be fixed on the basis of the presumptive pay of the lower post so determined as has been directed to be done by the authority by passing the impugned order but the Tribunal, without taking into consideration the right interpretation of the statutory provision, has passed the order which is not sustainable in the eye of law.
He further submits that the ratio laid down by the Hon‟ble Apex Court in the case of Chairman, Railway Board and others -vs- C.R.Rangadhamaiah and others, (1997) 6 SCC 623, upon which reliance has been put by the learned counsel for the applicant defending the order passed by the Tribunal, is not at all applicable.
54. We have heard learned counsel for the parties and perused the documents available on record.
5. The undisputed fact in this case is that the opposite party no.1/applicant was holding the substantive post of Junior Accountant but he was allowed to officiate as Head Clerk temporarily in the scale of pay of Rs.9300-34800/- in the retirement vacancy of Head Clerk in the office of the Working Plan Officer, Working Plan Division, Bhubaneswar w.e.f. 15.12.2008 till his superannuation i.e. 30.4.2009 or posting of a regular Head Clerk whichever is earlier in pursuance to the provision of Rule 119 of the Orissa Forest Department Code read with Rule 96 of the Orissa Service Code. The petitioner has superannuated from service while discharging his duty as Head Clerk on officiating post, however his pension was sanctioned by the office of the Accountant General, Odisha but subsequently an order has been passed by the authorities on 5.5.2010 which has been passed in adherence to Rule 48 of the OCS(Pension) Amended Rule,2009 having amended by Finance Department notification dated 9.12.2009. The presumptive pay as on 30.4.2009 of the applicant has been directed to be fixed at Rs.11,620/- plus G.P. Rs.2800/- per month in the scale of pay of Rs.5200-20,200/-(scale of pay of Junior Accountant) for calculation of pension and pensionary benefits had he not officiated in the higher post of Head Clerk.
The opposite party no.1/applicant being aggrieved with the same has approached the tribunal regarding applicability of the executive instruction dated 5.2.2004 and prospective application of the notification dated 9.12.2009 since he was superannuated from service w.e.f. 30.4.2009, the Tribunal has quashed the order dated 5.5.2010 which is not challenged in this writ petition.
6. Before examining the legality and propriety of the order dated 7.8.2015 passed by the Tribunal it is relevant to quote the provisions of Rule 48 of the OCS(Pension)Ruls,1992.
6"48. Emoluments for calculation of pension- Emoluments for calculation of pension shall be the emoluments as defined in clause(e) of sub-rule(1) of Rule 2 which the Government Servant has actually received or fixed notionally immediately before his retirement with effect from 1.1.2013."
Provisions of clause (e) of sub-rule(1) of Rule 2 of the OCS(Pension) Rules which is being quoted herein below:
"Emoluments means the basic pay as defined in rule 33(a)(i) of the Odisha Service Code and under the Odisha Revised Scale of Pay Rules, issued time to time by the Government including the grade pay wherever applicable, which the Government Servant has received actually or fixed notionally immediately before retirement or on the date of death and includes-
(a) Personal pay, land additional pay granted under rule 37(a) and Rule 96 respectively of the Odisha Service Code, and
(b) any other recurring emoluments which may be specially classed as „pay‟ by the Government under rule 33(a)(iii) of the Odisha Service Code."
By going through the provisions it is evident that emoluments for calculation of pension shall be the emoluments as defined in clause(e) of sub-rule(1) of Rule 2 which the Government Servant has actually received or fixed notionally immediately before his retirement with effect from 1.1.2013. Provision of Rule 2(1)((e) of the OCS(Pension)Rules,1992 which defines „emoluments‟ which means basic pay as defined under Rule 33(a)(i) of the Orissa Service Code. The provisions of Rule 33(a)(i) of the Orissa Service Code provides definition of pay which is being quoted herein below:
"Pay means the amount drawn monthly by a Government servant as the pay other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in the cadre."
It is evident from the definition of "Pay" as per the provision made in Rule 33(a)(i) of the Orissa Service Code which means the amount drawn monthly by a Government servant as the pay other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in the cadre.
7It is evident from the definition of pay that pay would mean a post held by an employee on being sanctioned substantively or in officiating capacity or to which he is entitled by reason of his position in the cadre, meaning thereby either on substantive post or in officiating capacity, the employee is entitled by reason of his position in the cadre, so an employee has to be in the cadre by virtue of the order passed by the competent authority.
It is important to examine the provision of Rule 96 of the Orissa Service Code which is being quoted herein below-
"96. Holding or officiating two or more independent post at one time:-
The pay of a Government servant appointed by the State Government to hold substantively as a temporary measure or to officiate in two or more independent posts at one time shall be regulated as follows:
(a) The highest pay to which he would be entitled if his appointment on one of the posts stood alone, may be drawn on account of his tenure of that post.
(b) For each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and
(c) If a compensatory allowances is attached to one or more of the posts he may draw such compensatory allowance the State Government may fix, provided that such allowance shall not exceed the total of the compensatory allowances attached to all the posts."
It is also evident from the provision as contained in Rule 119 of the Orissa Forest Department Code which is being quoted below-
"119. Additional pay for holding more than one charge - The question as to what additional pay, if any, may be granted to a Government under the Orissa Service Code, Rule 96, for temporarily holding full charge of, or officiating in, two or more independent posts will be regulated as follows:
(1) No additional pay shall be granted for holding charge of an additional post, unless the previous incumbent(if any) of the post has actual given over charge thereof under orders of competent authority and the appointment to the additional post has been made by a formal order of the authority who is competent to fill the second post.
Note- If the duration of the vacancy is knot likely to exceed one month, it should not be filled as a matter of course, but only if it is advisable on public grounds to do so.
8(2) The authority which appoints an officer to a post in addition to his own, will declare whether he officiates in, or holds full charge of, the additional post or is appointed merely to discharge its current duties. The additional pay should not be paid in an officer who is appointed to hold charge of the current duties of another post irrespective of the duration of the current charge.
Additional pay will not be admissible to an officer who discharges the duties of more than one appointment in the same office or in the same establishment or when the posts are directly and completely one above the other. In such cases the officer will draw the highest pay including the special pay to which he would be entitled if he officiated in one of the posts alone, and to nothing more.
A subordinate doing the work of another subordinate in the same office, e.g. a clerk discharging the duties of one ore more clerks in the same office, will draw his substantive pay only unless any of the posts which he holds i.e. one to which acting promotion would be admissible. In that case he will draw the pay which would be admissible to him for officiating in such post and nothing more.
(3) If an officer officiates in, or holds full charge of, the duties of two posts otherwise than in item(2) above, i.e. not in the same establishment or office, and not directly above one another, he will be entitled to the higher pay under the Orissa Service Code, Rule 96(a), as may be applicable to him plus such additional pay not exceeding one-fifth of the presumptive pay of the additional post as may be determined in each case. Compensatory allowance will be regulated by the Orissa Service Code, Rule 36(c).
Note - In the case of a Government servant officiating in a post continuously for more than three years if appointed to hold full charge of another post in addition to his own, will be entitled to count his officiating pay as substantive for the purpose of calculation of additional pay under this rule."
It is evident by going through the provisions of Rule 96 of the Orissa Service Code as well as Rule 119 of the Orissa Forest Department Code that in case of holding the post in officiating capacity an employee will be entitled to highest pay of one of the posts stood alone and for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay, meaning thereby in view of said provision an employee if allowed to continue in higher post in officiating capacity he will get his pay to which he is entitled and apart from that he may draw such reasonable pay, not exceeding half the presumptive pay excluding overseas pay of the post and in no case he will be allowed to get the pay scale of officiating higher post.
9In view of the statutory provision as discussed above especially provision of Rule 96 of the Orissa Service Code read with Rule 119 of the Orissa Forest Department Code it is evident that the applicant was not holding the post of substantive capacity rather intent of the order was to give pay scale of the substantive post along with additional pay as per the said provision which suggest that the petitioner was not holding the post of Head Clerk on substantive capacity and it is settled that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity, reference in this may be to the judgment of the Hon‟ble Apex Court in the case of Baleshwar Dass -vs- State of U.P., (1980)4 SCC
226.
7. We have gathered from the order dated 2.1.2009 in which the opposite party no.1 was allowed to officiate as Head Clerk temporarily in the retirement vacancy of Head Clerk in the office of the Working Plan Officer, Working Plan Division, Bhubaneswar with effect from 15.12.2008 till his superannuation i.e. 30.4.2009 or posting of regular Head Clerk whichever is earlier subject to the provisions laid down in Rule 119 of the Orissa Forest Department Code,1979 and Rule 96 of the Orissa Service Code and as such he cannot be allowed to get pay scale attached to the post of Head Clerk.
Even otherwise it is settled that officiating post cannot be said to be a regular promotion since officiating posting is being given without any order having been passed by the competent authority, i.e. no recommendation having been given in this regard by the duly constituted D.P.C. along with consideration of other similarly situated employees. If officiating posting would be allowed to get substantive post, in all practical 10 purpose there will be no difference between regular posting and officiating posting.
According to our considered view, if contention of the opposite party-1/applicant would be allowed then other similarly situated employees would be subjected to discrimination who even found to be eligible, would not get promotion but due to exigency of work in a particular post, in case of vacancy due to retirement or death, if allowed to officiate in the post and in that situation if pay would be allowed of the higher post, that would be discriminatory and this would also give premium to others to get higher pay by getting officiating posting on one pretext or the other.
However, we are not on that issue, we have to go by the rule and the rule provides that a person would be entitled to get pension on the basis of the pay attached to the post as if he hold the post on substantive basis and due to the order dated 2.1.2009 which stipulates that it is officiating posting by which the opposite party no.1/applicant has been allowed to work temporarily in the higher post of Head Clerk.
8. The other contention of the opposite party no.1/applicant is that in view of the provision of Rule 48 of the OCS(Pension) Rules,1992 he is entitled to get pension and he further argued that the amended Rule i.e. OCS(Pension) Amendment Rules,2009 will not adversely affect him, also the notification issued on 5.2.2004 cannot override the statutory provisions of Rule 92 which has been incorporated in accordance with Article 309 of the Constitution of India and he further submitted that the Rule amended after his retirement will not adversely affect the right which has been accrued to him. We are not disputing the settled proposition of law that any amendment has to be made applicable prospectively and not retrospectively but the fact is not the applicability of the notification dated 9.12.2009, however the same has been reflected in the order dated 5.5.2010 but the notification dated 9.12.2009 will be said to be clarification in view of the specific provisions contained in Rule 48 of the OCS(Pension) Rules,1992 read with Rule 33(a)(i) and Rule 96 of the Orissa Service Code and as such, the notification dated 9.12.2009 cannot be said to be amendment of the statutory provision rather 11 it is by way of clarification which has already been inserted in the statute from its inception.
9. Learned counsel for the opposite party no.1/applicant has put reliance of the judgment rendered by the Hon‟ble Apex Court in the case of Chairman, Railway Board and others -vs- C.R.Rangadhamaiah and others, (supra) but so far as the fact of the said case is reduction of amount of pension which has been sought to be reduced by virtue of making the rule applicable with retrospective effect and in that pretext it has been held by Hon‟ble Apex Court that the right which has been accrued cannot be taken away by giving retrospective effect, but that is not the fact here, rather merely by virtue of officiating posting an employee cannot get legal vested right to get higher post unless promoted regularly by the competent authority.
We, after appreciating the factual aspects as well as the legal position, have examined the order passed by the Tribunal regarding applicability of the amended Rule as to whether it will be applicable with retrospective effect or whether the executive instruction can override the statutory provision, but according to our considered view, that was not the issue as has been discussed by us herein above, but at the risk of repetition, we reiterate that the amended Rule as contained in the notification dated 9.12.2009 or the executive instruction dated 5.2.2004 cannot be said to be an amended provision repealing or necessitating a new provision in the statute, rather what has been stated in the statute since its inception has been clarified and if it is a clarification it will be from the date of its incorporation in the statute.
The Tribunal has not appreciated the fact that if pension would be granted to an employee merely on the basis of the officiating capacity that will create a difficult situation similarly situated persons and court of law while passing the order is to see the interest of others so that it may not jeopardize the interest of others on better footing being contrary to the statutory provision.
12The Tribunal has not appreciated that the provisions as contained in Rule 48 of the OCS(Pension) Rules,1992 read with Rule 33(a)(i) and Rule 96 of the Orissa Service Code if taken together, the opposite party no.1/applicant would not be entitled to get pension on basis of the officiating posting.
The Tribunal has also not taken note of specific stipulation regarding order of officiating posting subject to condition as contained in Rule 96 of the Orissa Service Code read with Rule 199 of the Orissa Forest Department Code.
We, after taking into this aspect of the matter, are of the considered view that the Tribunal has not appreciated the factual aspect as well as legal position in right perspective.
10. Accordingly, the order passed by the Tribunal dated 7.8.2015(Annexure-4) is not sustainable in the eye of law, hence the order is set aside.
In the result, the writ petition is allowed.
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S.N.Prasad, J.
Sanju Panda,J. I agree.
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Sanju Panda,J.
Orissa High Court, Cuttack,
Dated the 10th May,2017/Palai