Orissa High Court
State Of Odisha And Others vs Jogendra Biswal And Another on 17 January, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.22443 of 2016
In the matter of application under Articles 226 and 227 of the Constitution
of India.
---------
State of Odisha and others ...... Petitioner
- Versus-
Jogendra Biswal and another ...... Opposite Parties
For Petitioners : Additional Government Advocate
For Opp.Parties : M/s G.A.R.Dora, G.Rani Dora,
Priyadarsini Tripathy( for O.P.1)
---------
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
--------------------------------------------------------------------------------------
Date of hearing and judgment : 17.01.2017
--------------------------------------------------------------------------------------
S. N. Prasad, J.This writ petition has been filed by the State of Odisha invoking jurisdiction conferred upon this Court under Articles 226 and 227 of the Constitution of India assailing the order passed by the Odisha Administrative Tribunal, Cuttack Bench dated 11.1.2016 in O.A.No.4228(C) of 2013, whereby and where under stepping up pay of the opposite party no.1 has been allowed along with consequential service and financial benefits including retirement benefit as due and admissible.
2. Case of the opposite party no.1, applicant before the Tribunal, is that pursuant to redesignation of the post of Senior Assistant with effect from 1.1.1981,the opposite party no.1 as well as Sri P.C.Routray became Senior Assistant and in the said rank P.C.Routray was shown senior to the opposite party no.1.
2The opposite party no.1 was promoted to the rank of Section Officer, Level-II and joined on 30.3.1988, whereas Sri P.C.Routray was promoted to the said rank with effect from 23.5.1988. Thus P.C.Routray was junior to the opposite party no.1 in the rank of Section Officer, Level-II.
However, Sri Routray was drawing pay of Rs.1815/- and the opposite party no.1 was draying pay of Rs.1290/-. In the gradation list of Section Officer, Level-II dated 31.12.1996, position of the opposite party no.1 was at sl.no.7 above Sri Routray. Vide order dated 13.2.1997 the position of the opposite party no.1 was modified and shown at sl.no.34(A) whereas Sri Routray's position was shown at sl.no.7. The opposite partyno.1 had challenged the same in O.A.No.490 of 1997 in which the seniority of the opposite party no.1 fixed at sl.no.34(A) was quashed and his positionwas restored to sl.no.7 with direction to consider his promotion, said order was challenged in O.J.C.No.7608 of 1999 but the same was dismissed vide order 2.12.2011 and thereafter the opposite party no.1 was promoted to the rank of Audit Superintendent with effect from 22.2.1997, the date on which Sri Routray joined in the said post and his pay was fixed in the rank of Audit Superintendent at Rs.6700/-, whereas pay of Sri Routray was fixed at Rs.7900/-. After promotion, both of them exercised their option to retain the scale of pay in S.O. Level-II and to come over to the scale of pay the post of Audit Superintendent with effect from 1.5.1997.
The competent authority has come out with an order dated 18.2.2013 by which the opposite partyno.1 ought to have been treated as senior to Sri Routray and should ohave been promoted to the rank of Audit Superintendent earlier to Sri Routray and thereafter in view of the Finance Department concurrence pay of the opposite party no.1 was re-fixed w.e.f. 22.2.1997 in the post of Audit Superintendent with effect from the date Sri Routray was promoted and subsequently re-fixation of pay with financial benefits with effect from 19.1.1988 in the post of Section Officer, Level-I in the scale of Rs.6500/- pursuant to Finance Department Office Memorandum No.23315 dated 22.5.1984.
3Sri Routray retired from Government service on 28.2.1999 whereas the opposite partyno.1 continued in service and got promotion to the rank of Establishment Officer on 16.2.2001, scale of pay of the opposite party no.1 was less than Sri Routray in Section Officer, Level-II, the Audit Superintendent and Section Officer, Level-I for which he made a representation to the Director, Soil Conservation who sought clarification from the Government as to whether the pay of the opposite partyno.1 in the rank of Audit Superintendent can be stepped up/ante dated with Sri Routray with effect from 1.5.1997 but the Government vide letter dated 7.11.2013 clarified that the opposite party no.1 is not eligible to step up his pay in view of the condition laid down in para-1(d) of the Finance Department resolution dated 3.5.1985 and para-3 of the O.M. dated 15.11.2002.
3. Validity of the condition as contained in clause (d) of the resolution dated 3.5.1985 has been challenged by one Parikhit Jena in O.J.C.No.1749 of 1978 and R.C.Mohanty in O.J.C. No.925 of 1977 and this Court while answering the issue has observed that salary and status usually move hand in hand particularly in the same grade and therefore a junior cannot be given higher salary than that of his senior.
In view of the issue having been settled by this Court the opposite party no.1 has raised his claim before the Tribunal by filing original application for which the State, petitioner herein, filed counter affidavit stating that the grievance of the opposite party no.1 is not entertainable as he had joined in the Government service as L.D.Clerk on 5.2.1999 and promoted to the post of Senior Clerk on 15.10.1971, he joined in the office as L.D.Assistant (redesignated as Junior Assistant) on 13.3.1973 and promoted to the post of Grade-II Assistant (redesignated as Senior Assistant) on 28.2.1988, promoted to the post of Section Officer, Level-II on 30.3.1988 and to the post of Audit Superintendent on 22.2.1997, thereafter he was promoted to Selection Officer, Level-I on19.11.1988 and Establishment Officer on 1.5.1999, while on the other hand, Sri Routray joined in served as Junior Typist on 19.4.1961, as L.D. Assistant on 1.3.1962, promoted to 4 Grade-II Assistant on 16.7.1965 and to the post of Grade-I on 23.12.1972, thereafter promoted to Level-II on 23.5.1988 and promoted to Audit Superintendent on 23.2.1997.
According to the State, Sri Routray entered into government service earlier than the opposite partyno.1 and his pay was protected due to length of service.
The Tribunal after taking into consideration the materials placed before it and the Rule in force passed order stating that rejection of the claim of the opposite party no.1 for stepping up of pay is erroneous for the reason that the opposite party no.1 was receiving less pay than that of Sri Routray after coming to the cadre of Section Officer, Level-II and further directed that pay of the opposite partyno.1 be stepped up with Sri Routray with effect from 1.5.1977 in the rank of Audit Superintendent with consequential service and financial benefits including retiral benefits as due and admissible.
This order is under challenge in this writ petition.
4. We, after hearing the learned counsel for the parties and after perusing the materials available on record, have found that admittedly the opposite party no.1 has entered in government service as L.D.Clerk on 5.2.1969 while Sri Routray as Junior Typist on 19.4.1961. The tabular chart of the opposite party no.1 and Sri P.C.Routay is quoted herein below for reference.
Comparative statement of the applicant and Sri Padmacharan Routray.
Sri Jogendra Biswal(applicant in OA) Sri Padma Charan Routray
1. Date of entry into Govt. service as Date of entry into Govt. service as L.D.Clerk - 5.2.1999 typist - 19.4.961
2. Sr.Clerk - 15.10.1971 2. L.D.Asst. - 1.3.1962
3. L.D.Assistant - 13.7.1973 3. Grade-II Asst. - 16.7.1965
4. Grade-II Assist.-28.2.1978( re- 4. Grade-I Asst. - 23.12.1972 (Re-
5designated as Sr. Asst. designated as Sr. Asst.). 5. Pay fixed on 1.1.1981-Rs.355/- 5. Pay fixed as on 1.1.1981 -
under ORSP Rule,1981 in the scale of Rs.565/- under ORSP Rule,1981 in pay of Rs.320-10-340-15-400-EB-15- the scale of pay of Rs. 320-10-340- 430-20-490-EB-25-690-30-750. 15-400-EB-15-430-20-490-EB-25- 690-30-750.
6. Appointed as S.O.Level-II 6. Appointed as S.O. Level-II on 30.3.1986 as per judgment of Hon'ble 23.5.1988.
OAT, Odisha and order of the D.A. & F.P., Odisha
7. Pay fixed Rs.1290/- with effect 7. Pay fixed at Rs.1815/- with effect from 30.3.1998 in the scale of pay from 23.2.1998 in the scale of pay Rs.1210-40-1290-45-1515-EB-50- Rs.1210-40-1290-45-1515-EB-50-
1815-EB-50-2200/-. 1815-EB-50-2200/-. 8. Audit Superintendent 22.2.1997 9. Audit Superintendent 23.2.1997
as per exercising of option his pay is as per exercising of option his pay is fixed at Rs.6700/- with effect from fixed at Rs.7900/- with effect from 1.5.1997 in the scale of pay Rs.5900- 1.5.1997 in the scale of pay 200-9700 under ORSP Rule,1998. Rs.5900-200-9700 under ORSP Rule,1998.
9. S.O. Level-I with effect from 9. S.O. Level-I with effect from 01.05.1999 at Rs.7500/- as per 19.11.1998 pay fixed at Rs.8500/- exercising option in the scale of pay in the scale of pay of Rs.6500-200-
of Rs.6500-200-9900/-. 9900/-.
It is evident from the tabular chart that the opposite party no.1 has entered into service after Sri Routray and all along the opposite party no.1 has been promoted in different posts after order of promotion having been passed in favour of Mr.Routray but in the S.O. Level-II the opposite party no.1 has been promoted on 30.3.1988 while Sri Routray has been promoted on 23.5.1988 and likewise as Audit Superintendent opposite party no.1 was promoted on 22.2.1997 while Sri Routray was promoted on 23.2.1997, also in the cadre of S.O. Level-I the opposite partyno.1 was promoted on 1.5.1999 while Sri Routray was promoted on 19.11.1998.
5. Opposite party no.1 even though had been promoted as S.O.Level-II but his pay was fixed at Rs.1290/- w.e.f. 30.3.1998 in the scale of pay Rs.1210-40-1290-45-1515-EB-50-1815-EB-50-2200/-, while pay 6 scale of Mr. Routray was fixed at Rs.1815/- and from that stage the opposite party no.1 has become aggrieved for the reason that even though he was holding post of S.O. Level-II prior to Mr. Routray but was getting lesser pay scale than that of Mr. Routray and accordingly he made representation before the competent authority but the same was rejected which has been impugned before the Tribunal and the Tribunal after taking into consideration the resolution dated 3.5.1985 allowed promotion to the opposite partyno.1. We have gone through the resolution dated 3.5.1985 which contains the following conditions:
(a) Both the Junior and Senior Officer should belong to the same cadre and the posts in which they have been promoted or appointed should be identical in the same cadre.
(b) The scales of pay of the lower and higher posts, in which they are entitled to draw pay should be identical.
(c) The Senior Officer is senior to the Junior Officer both in the lower post as well as in the higher post.
(d) The Junior Officer was not drawing a higher rate of pay than the Senior in the lower post.
The condition no.(d) has been challenged by Parikshita Jena and Ramesh Chandra Mohanty as referred to above wherein this Court has passed order directing for stepping up of the pay in comparison to that of his junior but the said facility was withdrawn as he did not come with the exception (iii) contained in Government resolution dated 26.5.1975 which stipulates condition "when the junior draws higher pay on account of protection of pay drawn in his previous post belong to some other cadre ..." but this Court in the case of Ramesh Chandra Mohanty -vs- Accountant General,Orissa, Bhubaneswar and others passed in O.J.C.No.925 of 1977 has observed "salary and status usually move hand in hand and particularly in the same grade a junior officer cannot be given higher salary than a senior officer".
7This Court taking into consideration the observation made in the case of Ramesh Chandra Mohanty has passed order in the case of Parikshita Jena -v- State of Orissa and clarified that the exception would apply if the junior draws higher pay on account of protection of pay drawn in his previous post belonging to some other cadre.
6. The position in the instant case is very clear and the ground raised by the State of Odisha while assailing the order passed by the Tribunal that by virtue of the provision as contained in exception (iii) of the Government Resolution dated 26.5.75 the direction for stepping up salary of the opposite partyno.1 is illegal, we find no force on this argument, reason being it is not a case of pay protection having been given to Sri Routray and also not that Sri Routray has come from different cadre to the cadre of opposite party no.1 rather it is admitted position that at the initial stage opposite partyno.1 had joined his service as L.D.Clerk while Mr. Routray as Junior Typist and thereafter the opposite party no.1 has assumed charge of the post of Senior Clerk while Mr. Routray as L.D.Assistant, subsequently opposite party no.1 has joined as L.D.Assistant while Mr. Routray has joined as Grade-II Assistant. Opposite party no.1 has subsequently been promoted to the Grade-II Assistant after redesignation of the post to Senior Assistant while Mr. Routray as Grade-I Assistant but thereafter opposite partyno.1 and Mr. Routray have come in the same cadre of Section Officer,Level-II, opposite party no.1 came in the cadre on 30.3.1988 while Mr. Routray on 23.5.1988.
The State has not whispered a word in the pleading of the writ petition that Mr.Routray has ever been granted any pay protection so that clause(iii) of the resolution dated 26.5.1975 will be applicable.
We further find from the order impugned that the Tribunal after taking into consideration the law laid down in the case of Parikshit Jena as well as Ramesh Chandra Mohanty as referred to above has passed order taking into consideration conscious decision. We find no reason to interfere with the order of the Tribunal.
8Accordingly, the writ petition is dismissed.
.................... ........................
S.N. Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 17th January,2017/Palai