Orissa High Court
Bhabagrahi Pati And 134 Ors. vs State Of Orissa And Ors. on 8 February, 2006
Equivalent citations: 2006(I)OLR357
Author: A.K. Samantaray
Bench: B.P. Das, A.K. Samantaray
JUDGMENT A.K. Samantaray, J.
1. The petitioners who are 135 persons working in different posts of Bhubaneswar Municipal Corporation on permanent basis in the Local Fund Service have come up with this writ petition under Article 226 of the Constitution of India challenging the inaction of the State Government in not implementing the Orissa Revised Scale of Pay Rules, 1998 on the basis of 5th Pay Commission Report with effect from 1.1.1996 on the ground that the State Government has already implemented the same with effect from 1.1.1996 in respect of the employees of similar cadre in the State Government who are discharging duties and responsibilities of similar nature and have prayed for quashing the Resolution dated 29.8.2002 of Government of Orissa in Housing & Urban Development Department (Annexure-5 and another Resolution dated 28.7.2003 (Annexure-5/A) and to command the opposite parties to implement the Orissa Revised Scale of Pay Rules, 1998 with effect from 1.1.1996 on the basis of the 5th Pay Commission Report.
2. The sequence of events leading to filing of this writ petition may be stated briefly as follows :
The petitioners are working in different posts of Bhubaneswar Municipal Corporation on permanent basis in the Local Fund Service. The Orissa Revised Scale of Pay Rules, 1998 on the basis of the 5th Pay Commission Report was implemented in respect of the employees of the State Government in the same cadre and in respect of other Corporations with effect from 1.1.1996. The non-implementation of the revised scale of pay as per 5th Pay Commission report with effect from 1.1.1996 in respect of the petitioners runs contrary to the mandate of Rule 4(1) of the Orissa Local Fund Service Rules, 1975 and violates Articles 9, 14, 16 & 21 of the Constitution of India and therefore the Resolutions in Annexure 5 & 5/A implementing the revised scale of pay with effect from 1.8.2002 instead of 1.1.1996 is contrary to law on the ground of discrimination and violation of the rules.
3. In view of Section 81 of Orissa Municipal Act which empowers the State Government to create Local Fund Service and to make rules to regulate the clarifications, methods of recruitment, conditions of service, pay and allowance, discipline and conduct of the officials and servants belonging to Local Fund Service, the petitioners who are all employees as per the recruitment process of Local Fund Service under the Municipal Corporation and are brought into Local Fund Service are governed by the provisions of Orissa Local Fund Service Rules, 1975.
Rule 4(1) of the Local Fund Service Rules, 1975 reads as follows:
Rule 4(1)- Employees of the service shall get the time- scale of pay and allowances as are admissible to employees of similar cadre under the Government who have duties and responsibilities of equal nature.
Rule 4(2) - Inter se seniority, transfer, promotion, and confirmation shall be confined to the particular cadre.
4. In view of the aforesaid rules, the employees of the Local Fund Service are to be treated at par with the employees of similar cadre of the State Government in respect of time-scale of pay, allowances, disciplinary action, recruitment, appointment and transfer etc.
5. Prior to coming into force of the Orissa Local Fund Service Rules, 1975 the State Government by Resolution No. 23659 dated 13.9.1974 decides to rationalize and introduce uniformity in the scale of pay under Urban Local Bodies and by abolishing the gradation in various Local Urban Bodies directed the employees of such local bodies to be given benefit of revised scale of pay with effect from 1.1.1974 (Annexure-1). In fact the petitioners and other similarly situated persons have been given the benefit of revised scale of pay from time to time and in fact vide Resolution No. 10780/HUD dated 4.3,1983, the Orissa Revised Scale of Pay Rules, 1981 notified in Finance Department Notification No. 27260/F dated 10.7.1981 has been made applicable to the petitioners by revising their scale of pay with effect from 1.1.1981 (Annexure-2). Similarly, in 1986 the Revised Scale of Pay was made applicable to the petitioners vide Resolution No. 25848 dated 2.6.1986 (Annexure-3) and 1989 Revised Scale of Pay was also made applicable to the petitioners vide Resolution dated 23.3.1993 with effect from 1.5.1989 (Annexure-4).
6. It is averred that there is no justifiable reason for not revising the scale of pay of the petitioners as per the revised scale of pay rules, 1988 on the basis of the 5th Pay Commission Report with effect from 1.1.1996 when the Government has already given the said benefit to not only the Government employees of different departments but also the State Government employees on deputation to Bhubaneswar Municipal Corporation, who are drawing the scale of pay on the basis of revised scale of pay rules, 1998. Though they are discharging the same duties and responsibilities in the similar posts which the petitioners and their counterparts are holding, it has been indicated by way of comparison that 82 numbers of deputationists to Bhubaneswar Municipal Corporation from the Government are drawing monthly pay of Rs. 7,26,72/-- whereas 151 employees of the Corporation are drawing Rs. 6,92,405/-only.
7. The Bhubaneswar Development Authority (BDA) by order No. 1051 dated 27.2.1999 (Annexure-7) has extended the benefit of revised scale of pay granted to their counterparts in State Government and though both BDA and Bhubaneswar Municipal Corporation are under the Housing and Urban Development Department, the Municipal Corporation Employees have not been extended the benefit of revised scale of pay with effect from 1.1.1996. It is therefore stated that the revisional scale of pay vide Annexure-5 and amendment vide Annexure-5A is discriminatory and warrants interference since the petitioners as per Rule 4(1) of 1975 Rules are equated with the Government Employees and they are entitled to the same benefit which has been extended to their counterparts. The petitioners ventilating their grievance and seeking redressal of the same approached the Government, which did not render any result for which they have been constrained to approach this Court for getting the relief claimed. In support of this they have filed Annexure-8, a press release, to indicate that the petitioners had raised their grievance before the Government.
8. Government of Orissa (O.P. No. 1) in Housing and Urban Development Department has filed a counter affidavit and takes a stand at Paragraphs 3 & 4 that the petitioners are Municipal Employees and not Government Employees and as such they are not entitled to the Revised Scale of Pay Rules, 1998.
9. A counter affidavit has also been filed by Bhubaneswar Municipal Corporation. In the said counter affidavit at paragraph 7 it is stated that the employees of the Local Fund Service are discharging the same duties and responsibilities as the Government employees are discharging and as such they are entitled to the benefit of the Revised Scale of Pay Rules, 1998 with effect from 1.1.1996. It has been admitted that discrimination has been meted out to the petitioners by not extending the benefit of Revised Scale of Pay Rules, 1998 for which the Municipal Corporation has already recommended the case of the petitioners for making the 1998 Revised Scale of Pay applicable to them with effect from 1.1.1996. In paragraph 10 of the counter affidavit it has also been indicated that the employees of the Municipal Corporation can be paid 5th Pay Commission pay scale with effect from 1.1.1996 from the Corporation fund. But in order to pay the same necessary permission and concurrence of the Housing & Urban Development Department is necessary. It is also indicated therein that in order to implement the same statutory notification from the Government in Urban & Housing Development Department is necessary. It has been stated that the Corporation has passed a Resolution for implementation of the 5th Pay Commission recommendations and has sought for permission from the Government and is awaiting necessary approval of the Government to implement the same.
10. Learned Counsel for the petitioners submitted before us that the stand of the Government in the Urban and Housing Development Department that the Municipal employees are not government employees and therefore they are not entitled to the 1998 Revised Scale of Pay runs contrary to Rule 4(1) of the Local Fund Service Rules, 1975 when the petitioners are discharging the duties and responsibilities of equal nature which the employees of similar cadre of the State Government are discharging. He submitted with vehemence that the very fact as stated in paragraphs 3,5 & 7 of the counter affidavit that the pay scale of the Municipal employees has been revised as per 1998 Revised Scale of Pay but with effect from 1.8.2002 itself goes to show that 1998 Revised Scale of Pay is applicable to the petitioners who are Municipal employees. But instead of applying the same with effect from 1.1.1996 as it has been made applicable in the case of the Government employees and other employees of the Local Bodies, it has been made applicable from 1.8.2002 without any justifiable reasons as such the same is liable to be modified and a direction be issued to the Government to implement the same and making it applicable with effect from 1.1.1996. Learned Counsel further contended that from the counter affidavit filed by the Municipal Corporation it is evident that the Corporation is willing to make the funds available for implementation of the Revised Scale of Pay Rules, 1998 as per the 5th Pay Commission recommendation and has sought for sanction of the Government and in such a situation there is no justifiable reason as to why the Government shall not accord sanction and notify it making the 5th Pay Commission revised pay scale available to the petitioners with effect from 1.1.1996.
11. The learned Counsel appearing for the opposite party No. 1, the Government in Housing and Urban Development Department, submitted that since the opposite parties 2 and 4 have unanimously resolved in their Corporation meeting dated 31.7.2004 to allow the benefits of 5th Pay Commission recommendations to its employees at par with the government employees with retrospective effect from 1.1.1996 from the Corporation fund this opposite party cannot have any objection to it as the Government is not going to be saddled with any financial burden on account of the same.
12. There is catena of decisions of the Hon'ble Supreme Court that violation of statutory rules amounts to discrimination, which is violative of principles of natural justice. The Orissa Local Fund Service Rules, 1975 are the statutory rule, in which it has been provided that in Sub Rule (1) of Rule 4 the employees of the Local Fund Service shall get the time scale of pay and allowances as is admissible to the employees of similar cadre under the Government who have duties and responsibilities of equal nature. This provision is mandatory and binding upon the opposite parties. Departure from the same amounts to gross violation of Articles 14 and 16 of the Constitution.
13. We see no reason as to why the members of the Local Fund Service posted under the Bhubaneswar Municipal Corporation may not be sanctioned the revised scale in accordance with Rule 4(1) of the Local Fund Service Rules, 1975 when the Bhubaneswar Municipal Corporation is ready to bear financial burden on it.
14. Considering the facts and circumstances of the case, the writ petition is allowed. A writ of mandamus be issued commanding the State Government to accord sanction on the recommendation of the Bhubaneswar Municipal Corporation to the petitioners under Revised Scale of Pay Rules, 1998 on the basis of 5th Pay Commission Report with effect from 1.1.1996 modifying Annexures 5 and 5(A) with the condition that Bhubaneswar Municipal Corporation shall bear the financial burden which is to accrue on sanctioning the revised scale of pay. The notification be issued by the O.P. No. 1 within two months from the date of receipt of the writ which be communicated at the cost of the petitioners.
B.P. Das, J.
15. I agree.