Orissa High Court
Mahendra Kumar Mohanty vs State Of Orissa Represented By ... on 30 August, 2017
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) Nos.20784, 19927, 20291, 20092 and 20162 of 2014
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
-------
Mahendra Kumar Mohanty ......... Petitioners
(In W.P.(C) No.20784/2014)
Surendra Nath Beura
(In W.P.(C) No.19927/2014)
Kailash Chandra Mohanty
(In W.P.(C) No.20291/2014)
Smt. Srilekha Mohanty
(In W.P.(C) No.20092/2014)
OSRTC Employees Association and another
(In W.P.(C) No.20162/2014)
Versus
State of Orissa represented by
Commissioner-cum-Secretary to
Government, Transport Department
and others ......... Opp. Parties
For Petitioners : M/s.Kamala K. Nayak, B.B.Das,
B.D.Sahoo and B.K.Nayak
(In all the writ petitions)
For Opp. Parties : Mr.Amit Ku. Pattnaik
Additional Government Advocate
(For O.P.No.1 in all writ petitions)
Mr.Hrusikesh Tripathy
(For O.Ps.2 and 3 in all writ petitions)
.........
PRESENT:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY
---------------------------------------------------------------------------------
Date of hearing:12.07.2017 Date of Judgment:30.08.2017
---------------------------------------------------------------------------------
Dr. D.P.Choudhury, J. These writ petitions have been filed assailing the
inaction of the opposite parties for non-payment of differential arrear
-2-
salary under Orissa Revised Scale of Pay Rules, 1998 (hereinafter called
as "the ORSP Rules, 1998") to the petitioners.
2. Since the above five writ petitions have got common
question of law, they are being taken up together for disposal by this
common judgment.
FACTS
3. The adumbrated facts of the petitioners are that the
petitioners in W.P.(C) Nos.20784, 19927, 20291, 20092 of 2014 and
petitioner no.2 in W.P.(C) No.20162 of 2014, were employees of Orissa
State Road Transport Corporation (in short "the Corporation"). Petitioner
No.1 in W.P.(C) No.20162 of 2014 is the General Secretary of
Employees' Association of the Corporation and it has prayed for a
direction to implement the Resolution of the Finance Department dated
17.04.1998from the effective date by the Corporation in respect of its employees.
4. The petitioner in W.P.(C) No.20784 of 2014 was an employee of the Corporation and retired from service with effect from 31.07.1999 after having started his service career as a Lower Division Clerk on 29.08.1964 and subsequently promoted to different posts before superannuation under Voluntary Retirement Scheme (hereinafter called as "VRS"). Be it stated that the Corporation is a Statutory Corporation and the employees are regulated under the provisions of Orissa State Road Transport Corporation Employees (Classification, Recruitment and Condition of Service) Regulation, 1978 (hereinafter -3- called as "the Regulation, 1978") which was framed under Section 34 of the Road Transport Corporation Act, 1950 (in short "the Act, 1950").
5. The scale of pay prescribed by the State Government for different cadre of different posts are followed by the Corporation for its employees. So, the ORSP Rules, 1998 was also implemented for which the scale of pay of the petitioner was also revised at Rs.4500/- per month as per order dated 01.03.2004 with effect from 01.01.1996. Since the annual increment was also made available to the petitioner, the pay of the petitioner was fixed at Rs.4875/- at the time of his superannuation. The petitioner took voluntary retirement because of his health condition. Be it stated that although the pay of the petitioner was revised under ORSP Rules, 1998 and his pay was fixed as per the said Rule at the time of his retirement, the arrear salary from 01.01.1996 till his retirement was not made available to him for which he filed a writ petition before this Court, i.e., W.P.(C) No.7982 of 2008 and after hearing the parties, this Court, without expressing any opinion with regard to the merits of the case, disposed of the said writ petition on 29.07.2008 directing the opposite party no.1 therein to dispose of the representation said to have been filed by the petitioner before the opposite party. The petitioner made representation in accordance with the order of this Court but the opposite party rejected the same by observing that the payment of the petitioner was being made as per ORSP Rule, 1989 and the Board of the Corporation has not adopted the ORSP Rule, 1998 by then resulting rejection of the representation of the petitioner. The petitioner assails such rejection on the ground that the -4- pay of the petitioner has been fixed as per ORSP Rule, 1998 but not ORSP Rule, 1989 and the ground of rejection of the petitioner was not correct factually. Be it stated that the Corporation adopted and accepted the ORSP Rule, 1998 prospectively from 16.02.2009. So, the petitioner filed another writ petition before this Court, i.e., W.P.(C) No.10578 of 2010 and this Court, vide order dated 29.7.2013, again directed the opposite parties 2 and 4 therein to pay the differential arrear dues of the petitioner as per the Office Order dated 12.04.2004, as expeditiously as possible, preferably within a period of three months from the date of receipt of that order. The petitioner made representation along with the certified copy of that order to the opposite party no.2, but without obeying the order of this Court, the opposite party no.2 arbitrarily rejected the request of the petitioner to pay the arrear dues and communicated such fact vide Annexure-7. The petitioner, terming the same as illegal and improper, filed the present writ petition with a prayer to quash Annexure-7 and prays for a direction for payment of the differential arrear amount for the period from 01.01.1996 to 31.07.1999 to the petitioner.
6. The petitioners in W.P.(C) Nos.19927, 20291 and 20092 of 2014 and petitioner no.2 in W.P.(C) No.20162 of 2014 have similarly situated and they have retired from service on 1.1.2002, 30.11.2001, 31.7.2002 and 25.7.2002 respectively either under VRS or attaining the age of superannuation. All these petitioners have got stand on the same footing as that of the petitioner in W.P.(C) No.20784 of 2014. The petitioner in W.P.(C) No.19927 of 2014 filed W.P.(C) No.9248 of 2008, -5- petitioner in W.P.(C) No.20291 of 2014 filed W.P.(C) No.7933 of 2013, and the petitioner in W.P.(C) No.20092 of 2014 filed W.P.(C) No.7989 of 2008 like the petitioner in W.P.(C) No.20784 of 2014 claiming their arrear salary and this Court, without expressing any opinion, directed the Managing Director of the Corporation to dispose of their respective representations, but disposal of the same met the same fate as the disposal of the representation of the petitioner in W.P.(C) No.20784 of 2014. Again the petitioner in W.P.(C) No.19927 of 2014 filed W.P.(C) No.5707 of 2013, petitioner in W.P.(C) No.20291 of 2014 filed W.P.(C) No.18029 of 2013, and the petitioner in W.P.(C) No.20092 of 2014 filed W.P.(C) No.10579 of 2010 and in spite of the direction of this Court passed in these subsequent writ petitions, the Corporation did not consider their claim for which they have knocked the door of this Court claiming differential arrear amount after fixation of the pay with effect from 01.01.1996 till the date of their respective retirement either under VRS or the normal superannuation, as the case may be.
7. SUBMISSIONS Mr.Nayak, learned counsel for the petitioners submitted that since the pay of the petitioner has been fixed with effect from 01.01.1996 in pursuance of the ORSP Rules, 1998 read with Office Order No.21831 dated 2.12.2003 at Rs.4500/-, the question of payment of arrear salary cannot be denied. According to him, the ORSP Rule, 1998 since being implemented and the pay has been fixed, the petitioners are entitled for arrear salary for those period. -6-
8. Mr.Nayak, learned counsel for the petitioners submitted that vide order dated 18.02.2009 of the Corporation, the revised scale of pay of 1998 shall be made effective from 16.02.2009, but it is clearly mentioned therein that the pay of the employees in ORSP-98 shall be fixed according to the guidelines laid down vide F.D. Resolution giving guidelines for fixation of the pay under ORSP Rule, 1998. A further condition in that Office Order is that the revision of pay by fitment of scale of pay in light of the terms indicated under ORSP Rules, 1999 shall be made applicable only in case of regular employees for which there is no point for submission by the opposite parties deferring the payment.
9. Mr.Nayak, learned counsel for the petitioners submitted that the Court has also taken cognizance of such rule in the earlier writ petition, i.e., W.P.(C) No.10578 of 2010 basing on which the Court directed for payment of such arrear and thus, the action of the opposite party by not adhering to such Office Order is also illegal and improper. According to him, even if the circular is adopted in 2009 by the Corporation, the benefit accrued under ORSP Rule, 1998 should be made available to the employees working by then where there is conspicuous absence of any provision in Annexure-5 that it would not apply to the person who had retired by 2009. So, he submitted to quash the order vide Annexure-7 denying the claim of the petitioner and to direct the opposite parties to make payment of the arrear dues of the petitioner.
10. Mr.Tripathy, learned counsel for the Corporation submitted that there is clear indication in the Office Order dated 18.02.2009 that -7- the fitment shall be prospective without any allowance on basic pay and no arrear salary shall be paid on this account and the ORSP Rule, 1998 is made effective from 16.02.2009 for the employees of the Corporation. Following such terms and conditions, the Board adopted the ORSP Rule, 1998. When there is clear terms and conditions in Annexure-5, the relief asked for by the present petitioner is not tenable. So, he prayed to dismiss the writ petition.
11. POINTS FOR CONSIDERATION The main points for consideration are as to (i) whether the petitioners' scale of pay has been revised under ORSP Rule, 1989 in the year 2004; and (ii) whether the petitioners are entitled to arrear salary as claimed by them?
DISCUSSIONS POINT No.(i)
12. It is not in dispute that the petitioners have travelled this Court for the third time. It is the admitted fact that the petitioners were regular employees of the Corporation and they have retired from their service either under VRS or normal superannuation. It is not in dispute that the petitioners have received retiral dues after retirement.
13. It is the claim of the petitioners that their pay has been fixed by the opposite parties 2 and 3 in accordance with the ORSP Rules, 1998 in the year 2004 as per orders vide Annexure3 with effect from 1.1.1996. On the other hand, the Corporation has taken a plea that such fixation of the pay was made in accordance with the ORSP Rules, 1989 but not under ORSP Rules, 1998.
-8-
14. After perusing Annexures-2 and 3 to W.P.(C) No.20784 of 2014, it appears that the pay of the petitioner in that writ petition has been fixed up with effect from 01.01.1996 in the revised pay at Rs.4500/- in the revised scale of pay of Rs.4500-125-7000 under the ORSP Rules, 1996. Since there is no ORSP Rule, 1996 but there is ORSP Rules, 1989 and 1998, the order vide Annexure-2 does not support the claim of the petitioner. Apart from this, the petitioner claims that the Corporation adopted the ORSP Rules, 1998 as per Office Order dated 18.02.2009, but he challenges the same only on the ground that said order should not be effective prospectively from 16.02.2009 but it should have been effective from 01.01.1996. When in one hand, the petitioners claim that their pay has been revised as per ORSP Rules, 1998 in accordance with the order of the opposite party issued on 12.03.2004, on the other hand, the petitioners have taken a plea that the Office Order dated 18.2.2009 issued by the Corporation about applicability of ORSP Rules, 1998 prospectively is illegal. The Corporation, however, has taken a stand that the salary of the petitioners was revised with effect from 1.1.1996 as per ORSP Rules, 1989 in accordance with the Office Orders issued by the Corporation in the year 2004 vide Annexures-2 and 3. When the petitioners are not consistent in their plea and the pay fixation has been made with effect from 1.1.1996 by virtue of the order passed in 2004 for the petitioners, there is reason to believe that the pay fixation of the petitioners has been made with effect from 1.1.1996 as per ORSP Rules, 1989. Point No.(i) is answered accordingly.
-9-
15. Point No.(ii) Now, the crux of the matter is about the applicability of the ORSP Rules, 1998. The plea taken by the Corporation has got two folds. In the first fold, they submitted that the petitioners are not entitled to revised pay under ORSP Rules, 1998 because the Office Order issued by the Corporation in the year 2009 is effective prospectively and the petitioners having being retired by then, are not entitled to such benefit accrued thereunder. The second fold of argument of the opposite party- Corporation is that the opposite party-Corporation is facing serious financial hardship in meeting the regular salary paid to its employees. On the other hand, they denied to pay the revised arrear salary to the petitioners due to financial crunch of the Corporation.
16. Mr.Nayak, learned counsel for the petitioners submitted that it is trite in law that the financial crunch or financial instability of the State Government or Central Government or the undertakings of such Government cannot be a plea to deny the right of the employees. It has already been observed, as above, that in the year 2004, the Corporation revised the scale of pay of the petitioners with effect from 1.1.1996 as per ORSP Rules, 1989. This fact is admitted by the Corporation in its counter also. On perusal of the writ petitions, it appears that the petitioners have retired by 2004 when the benefit of ORSP Rules, 1989 was extended. When the Corporation could extend the benefit of ORSP Rules, 1989 after retirement of the petitioners, it is not conscionable to understand as to how the plea of the Corporation could be tenable to refuse the benefit of ORSP Rules, 1998 to the petitioners as they have
- 10 -
retired by 2009 when the Corporation adopted such Scale of pay of ORSP Rules, of 1998. On the other hand, inconsistent plea of the opposite party-Corporation has to be kept at bay.
17. The Office Order dated 18.2.2009 relates to application of ORSP Rules, 1998 and such notification is placed below for reference:
"ORISSA STATE ROAD TRANSPORT CORPORATION, BHUBANESWAR No.2161/TOE-18/98 Dated the 18th February, 2009 OFFICE ORDER Sub:-Implementation of Revised Scale of Pay, 1998 in respect of OSRTC employees.
In accordance with the Finance Deptt. Resolution No.18231 dt.17.4.98 read with F.D. Notification No.255/98 dt.3.6.98 and approval of the Government in C&T (T) Deptt. Communication vide its Letter No.1110 dt. 16.2.2009, the revised scale of pay 1998 is applicable to the employees of O.S.R.T.C (including the employees of Erstwhile O.R.T. Co & S.T.S. employees now on deputation to OSRTC).
The Revised scales of Pay-1998 shall be effective from 16.02.2009 with the following conditions.
1. The Revision of pay by fitment of scale of pay in light of the terms indicated under ORSP Rules, 1999 shall be applicable only in case of regular employees appointed in regular manner against the sanctioned post exclusively.
2. The fitment shall be prospective without any allowance on basic pay and no arrear salary on allowance shall be paid on this account.
The pay of the employees in RSP-98 shall be fixed according to the guide lines laid down vide F.D. Resolution as cited above. A set of F.D. Notification Resolution is enclosed for guidance.
The following officers are authorized to check the pay Fixation Statement as envisaged in the Rules prescribed by F.D. in respect of the Establishment indicated against each.
Sl. Name of the Designation Establishment
No. officers
1 Sri Bhaskar Auditor Hqrs Headquqarters, OSRTC press,
Mishra Central Store, Cuttack,
DM., BBSR
D.T.M., Cuttack, DTM, BBSR
D.W.E. BBSR
DTM., Keonjhar
DTM, Angul
- 11 -
2. Sri S.K.Pattnaik Auditor Bargarh DTM, Bargarh/Padampur/ Bhawanipatna/Jeypore/ Vizianagaram
3. Sri B.K.Swain Auditor DM, Sambalpur/DWE Sambalpur Sambalpur/DTM Sambalpur/Balangir/Rourkela
4. Sri P.K.Pradhan Auditor DTM, Berhampur, Berhampur Bhanjanagar, DM, Berhmapur, DWE, Berhmapur Sd/-G.C.Ray, Chairman-cum-M.D., OSRTC Xx xx xx xx"
The aforesaid Office Order makes the ORSP Rules, 1998 effective from 16.02.2009. Apart from this, the Office Order clearly states that in accordance with the Finance Department Resolution Dated 17.4.1998 is made effective to the Corporation from 16.02.2009. On the other hand, the Corporation adopted the ORSP Rules, 1998 in 2009, but it does not disclose per se that it is only effective prospectively by denying the claim of the employees working at the time of 1998. It is also explicitly mentioned there that the said Rule was made effective with two conditions. One of the conditions is that the revision of scale of pay would be made by fitment in the light of the terms indicated under ORSP Rules, 1998 and the second condition is that the fitment shall be prospective without any allowance on basic pay and no arrear salary on allowance shall be paid on this account. On the other hand, the second condition of the above Office Order does not allow any allowance on basic pay and also refused to pay arrear salary. At the same time, the said Office Order states that the pay of the employees under ORSP Rules, 1998 shall be fixed according to the guidelines laid down vide Finance Department Resolution dated 17.07.1998. Clause-12 of the said
- 12 -
Resolution deals with mode of payment of arrear dues, which is reproduced as under:
"12.Notwithstanding anything contained in these rules, the arrear dues to which a Government servant is entitled on account of revision of pay scales with effect from the first day of January, 1996 or any subsequent date from which revised pay is opted for till the end of 31st March, 1998 shall be credited to his/her General Provident Fund Account and in respect of those who have no such Account, new accounts shall be opened immediately in relaxation of the relevant rules where necessary, and thereafter, the dues shall be credited. In either case, the credit of the arrears dues to General Provident Fund Account shall have a lock-in period of five years counted from the month of actual drawal and credit of such arrear dues. As regards mode of payment of current dues from 1 st April, 1998, fifty percentage (50%) of the differential between existing pay, dearness allowance and interim relief as on 1 st January, 1996 or the date from which the revised pay is opted for and the revised pay on that date would also be impounded to the General Provident Fund Account with a lock-in period of five years counting from 1st April, 1998."
18. The ORSP Rules, 1998 vide said Finance Department Resolution of 1998 was issued by the Government of Orissa in Finance Department on 03.06.1998 after being framed under Article 309 of the Constitution of India. When the Rules are framed under legislative process with effect from 01.01.1996, the Office Order dated 18.02.2009 vide Annexure-2 showing to be effective from 16.02.2009 by contradicting Clause-12 of the ORSP Rules, 1998 cannot stand in the eye of law because the Office Order cannot be inconsistent with the Rules framed by the Government. Moreover, ORSP Rules, 1998 is effective from 1.1.1996 although such Rule is framed in 1998. When ORSP Rules, 1998 is adopted by the Corporation in 2009, the ORSP Rules, 1998 would apply entirely to the employees of the Corporation. Any restriction by the Corporation by issuing Office Order dated 18.2.2009 inconsistent to ORSP Rules, 1998 would be de hors the law. It is trite in law that Office Order is not law whereas Rule framed is law
- 13 -
as per Article 13(3)(a) of the Constitution of India. On the other hand, ORSP Rules, 1998 must be implemented from 01.01.1996 to the petitioners-employees of the Corporation but not prospectively.
19. The Hon'ble Supreme Court in the case of Vinod Kumar Koul -V- State of Jammu and Kashmir and others; AIR 2012 SC 3149, at paragraphs-10 and 12 have observed in the following manner:
"10.There is nothing in the language of Rule 13(i) or any other Rule from which it can be inferred that for the District cadre post only a permanent resident of the particular district can apply. Rather, Rule 13(i) postulates inviting of applications from the permanent residents of Jammu and Kashmir and not any particular district. Only in terms of clause (ii) of Rule 13 the candidature of a person who applies for more than one district can be considered for the district in which he is ordinarily residing. In our view, in the absence of any statutory stipulation in that regard, it cannot be said that a candidate who is a permanent resident of the State of Jammu and Kashmir is not eligible to be considered for a District cadre post merely because he is not a permanent resident of the particular District for which the post has been advertised.
12.In our view, the administrative decision of the Board, which is ex facie inconsistent with the plain language of Rule 13(i), could not have been relied upon for determining eligibility of the appellant for appointment as Laboratory Assistant in District Udhampur...
xx xx xx"
With due respect to the above decision, it appears that no administrative decision can override the statute and in the instant cases, the Office Order dated 18.02.2009 of the opposite party-Corporation cannot override the statutory Rules, i.e, ORSP Rules, 1998 by making such Rule prospective for the employees of the Corporation and restricting payment of arrear salary and other allowances
20. If the matter is analyzed in another angle, it must be placed on record that the ORSP Rules, 1998 has stated about revision of pay as available to the employees with effect from 1.1.1996. The Office Order
- 14 -
dated 18.02.2009 although adopts the fitment of the scale of pay as per such ORSP Rules, 1998, but denies to give allowance on the pay and arrear salary which are not tenets of such ORSP Rules, 1998. Thus, it fails to the logic to accept the contention of the opposite party- Corporation that the pay available in 2009 would not relate back to 1.1.1996. So, the Office Order dated 18.02.2009 issued by the Corporation is not only contrary to the Rules framed under the power conferred under the Constitution but also it is self-contradictory and otiose one. On the other hand, ORSP Rules, 1998 as per its entire provisions being applicable to the employees of the Corporation including the petitioners would be effective from 01.01.1996. It is also revealed that the petitioners are all retired regular employees of the Corporation. Since they were working as on 1.1.1996 and ORSP Rules, 1998 even if adopted later on, on 16.2.2009 by the Corporation would be effective from 01.01.1996, the petitioners are entitled to the benefit of ORSP Rules, 1998 from 1.1.1996 till their retirement.
21. The further contention of the Corporation that the financial condition of the Corporation is not good to meet the salary of the employees and they are not able to meet the arrear salary is a matter of concern. There are catena of decisions where the Hon'ble Supreme Court have made preference to the right of the employees to the financial crunch of the Government. Before adopting the ORSP Rules, 1998, it was for the Corporation to think twice whether they would apply the said Rule or not. Once the said Rule is applied in its whole terms, the financial crunch of the Corporation cannot stand on the way to
- 15 -
extend the benefit accrued to petitioner. Moreover, the financial condition of the Corporation is left to the Corporation and the Government but cannot be saddled with the employees to make their lives miserably for the benefits available to them. On the other hand, the financial condition of the Corporation is not to scuttle the right to get arrear salary by the petitioners. Hence, such contention is equally indefensible.
22. The petitioners have claimed the arrear salary with effect from 1.1.1996 till their retirement and since as per above discussion the Office Order dated 18.2.2009 cannot apply prospectively, the petitioners are entitled to their arrears in accordance with the ORSP Rules, 1998 with effect from 01.01.1996. Point No.(ii) is answered accordingly.
23. CONCLUSION The petitioners, in all the writ petitions, have prayed for a direction to the opposite parties to quash the Officer Order dated 18.02.2009 and to grant payment of differential arrear amount with effect from 01.01.1996 till the date of their retirement either under VRS or under normal superannuation. The Office Order dated 18.02.2009 is inconsistent with ORSP Rules, 1998 and in the opinion of this Court, the same should be quashed and the Court do so. Similarly, it is observed above that the petitioners being employees of the opposite party- Corporation are entitled to arrear salary in accordance with the ORSP Rules, 1998. Hence, the Court direct as follows:
- 16 -
(I) The opposite party nos.2 and 3-Corporation are directed to issue a modification to the Officer Order dated 18.02.2009 in the line of ORSP Rules, 1998 being applicable from the date of 01.01.1996;
(II) The opposite party nos.2 and 3-Corporation are directed to calculate the differential arrear salary of petitioners with effect from 01.01.1996 till the respective date of their retirement either under VRS or under normal superannuation and make payment of the same to the petitioners after offering opportunity of being heard to them; and (III) The entire exercise, as directed above, must be completed within a period of four months from today.
The writ petitions are disposed of accordingly.
....................................
Dr.D.P.Choudhury,J Orissa High Court, Cuttack Dated the 30th Day of August, 2017/B.Nayak