Orissa High Court
Afr vs State Of Odisha & Others ....... Opp. ... on 19 April, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 29055 of 2013 &
W.P.(C) No. 8947 of 2012
(Applications under Articles 226 & 227 of Constitution of India)
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W.P.(C) No. 29055 of 2013
AFR
Daitari Rout ....... Petitioner
- Versus -
State of Odisha & Others ....... Opp. Parties
W.P.(C) No. 8947 of 2012
Bishnu Charan Samal ....... Petitioner
- Versus -
State of Odisha & Others ....... Opp. Parties
Advocate(s) appeared in these cases:-
_________________________________________________________
For Petitioner(s) : Mr. P.C. Acharya, Advocate
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19th April, 2024 SASHIKANTA MISHRA, J.
Both these writ applications involve similar facts and common question of law. Hence, both being heard together are disposed of by this common judgment.
Page 1 of 15
2. The petitioner in W.P.(C) No. 8947 of 2012 initially joined as Instructor in SPST in Baruneswar Mahavidyalaya, Jajpur being appointed on 01.10.1985. Such appointment was approved by the Director, Higher Education vide order dated 20.02.1991. The petitioner in W.P.(C) No. 29055 of 2013 was appointed as Lecturer in Physics in the aforementioned College on 01.06.1987. His appointment was approved by order dated 15.06.1996.
3. It is the common grievance of both the petitioners that despite completing 15 years of continuous service as on 01.10.2000 and 25 years as on 01.10.2010 (in case of the petitioner in W.P.(C) No. 8947 of 2012) and 15 years as on 01.06.2002 ( in case petitioner in W.P.(C) No. 29055 of 2013), they were not granted Time Bound Advancement (TBA) scale as per the provisions of the Odisha Revised Scales of Pay Rules, 1998 ( in short "ORSP Rules, 1998"). It is stated that as per Rule 8(2) of the ORSP Rules, 1998, employees on completion of fifteen years of service in a particular grade as on 01.01.1996 or thereafter shall be eligible to TBA Scale only in the revised scale of pay. The Page 2 of 15 petitioners being teaching staff of an Aided Educational Institution claim parity with their counterparts in the Government educational institutions on the basis of Rule 9 of the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (in short "1974 Rules"). It is further stated that ORSP Rules, 1998 has been made applicable to the non-Government Aided Colleges vide Government Resolution No. 14161 of 20.03.2003 w.e.f. 01.01.1996. Both the petitioners submitted several representations to the Government as well as the Director, but no avail. Being aggrieved by such inaction of the authorities, they have filed these writ applications with prayer to direct the opposite party authorities to grant TBA Scale to them. The petitioner in W.P.(C) No. 8947 of 2012 claims TBA from 01.10.2000 and second ACP from 01.10.2010 while the petitioner in W.P.(C) No. 29055 of 2013 claims TBA from 01.06.2002 and second ACP from 01.06.2012.
Page 3 of 15
4. Counter affidavit has been filed by the State opposite parties in W.P.(C) No. 29055 of 2013, which according to learned State Counsel shall cover the other case also. In the counter affidavit it is stated that the benefit of the ORSP Rules, 1998 is applicable only to employees of the State Government and not to employees of non- Government Aided Colleges. It is further stated that as per Section 7-C(4) of the Odisha Education Act, TBA falls within the domain of Grant-in-Aid (GIA), which the Government has not decided so far to allow to the employees of non- Government Aided Colleges as per ORSP Rules, 1998. It is also stated that Rule-9 of 1974 Rules deals only with drawal of pay and allowance on which the employees of non- Government Aided Colleges can seek parity with Government employees but the instant claim with regard to extension of TBA/ACP in shape of financial upgradation does not come within the meaning of „pay‟ as per Rule 9(1) of the 1974 Rules. TBA is a benefit under special circumstance and not to be granted automatically on completion of the stated period unless a recognized Committee recommends the same. Further, any GIA is not a matter of right to be Page 4 of 15 claimed by the employee and depends on several factors including the financial capacity of the Government.
5. Heard Mr. P.C. Acharya, learned counsel for the petitioners in both the writ applications and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State.
6. Mr. Acharya has argued that Section 9 of 1974 Rules clearly provides that every employee of an Aided Educational Institution shall draw the same pay, D.A. and subsistence allowance as admissible to his counterpart in the Government educational institutions. Financial upgradation by way of TBA is nothing but addition to the pay and therefore, the employees of Aided Educational Institutions cannot be deprived of the same as it would be violative of Section 9(1) of the 1974 Rules. On such basis, Mr. Acharya submits that since the ORSP Rules, 1998 was made applicable to the government employees, the petitioners by virtue of Section 9(1) of the 1974 Rules, are also entitled to the same.
7. Mr. S.N. Pattnaik, learned Addl. Government Advocate on the other hand, would argue that financial Page 5 of 15 upgradation by way of TBA is meant to remove stagnation where an employee is deprived of promotional avenues. Therefore, the Government, as a matter of policy, decided to provide such benefit to its employees if they are found to have stagnated in a particular grade for a certain period of time. It is therefore, in the nature of an incentive which cannot be treated as „pay‟ within the meaning of Section 9(1) of 1974 Rules. Mr. Pattnaik has cited a Full Bench judgment of this Court in the case of Purna Chandra Mohanta vs. State of Odisha and others1 in this regard.
8. It is not disputed that the petitioners joined in service in Baruneswar Mahavidyalaya, which is an Aided Educational Institution within the meaning of Section 3(b) of the Odisha Education Act, 1969. The petitioner in W.P.(C) No. 8947 of 2012 was appointed on 01.10.1985 and his appointment was approved on 20.02.1991. He completed 15 years of continuous service on 01.10.2000 and 25 years on 01.10.2010. Similarly, the petitioner in W.P.(C) No. 29055 of 2013 was appointed on 01.06.1987 and his appointment was approved on 15.06.1996. He completed 15 years of 1 1996(I) OLR 309 Page 6 of 15 continuous on 01.06.2002 and 25 years on 01.06.2012. The Government introduced the Odisha Revised Scale of Pay Rules, 1998 vide Notification dated 03.06.1998. Rule 2(1) of the said Rules reads as follows;
"2(1) Save as otherwise provided under these rules, these rules shall apply to all persons in whole time employment of Government."
9. Rule-8 deals with Time Bound Advancement Scale and reads as follows:
"8. 1) The revised time bound advancement scale for Class-IV employees in the existing scale of pay 750-940 on completion of 20 years of service, Drivers (Light Vehicle) in the existing scale of pay 950-1500, Drivers (Heavy Vehicle) in the existing scale of pay 975-1660 and Junior Engineers in the existing scale of pa/ 1400-2600 on completion of 15 years of service and on completion of 25 years of service in their respective original post/grade shall be as specified in column (6) of the Second Schedule against the existing scale in column (3) & (5) and corresponding revised scale of pay in column (4) thereof:
Provided that those Class-IV employees who have already availed of the time-bound advancement scale on completion of 20 years of service under Orissa Revised Scales of Pay Rules, 1989 and Drivers/Junior Engineers who have already availed of the 1st and 2nd stage of time-bound advancement scales on completion of 15 years and 25 years of service, as the case may be, shall not be entitled again to the time-bound advancement scale in the revised scale of pay, 1998 now prescribed.
2) Except Class-IV employees, Drivers and Junior Engineers as specified in the Second Schedule, Page 7 of 15 other categories of employees on completion of 15 (fifteen) years of service in a post/grade as on 1 January, 1996 or thereafter shall be entitled to time-bound advancement scale only in the revised scale of pay as specified in column (4) of the Third Schedule against revised scale shown in column (3) of the said schedule.
xx xx xx"
10. The first question that this Court is required to answer is relating to the applicability of these Rules to the employees of Non-government Aided Educational Institutions. On the first blush, Rule 2(1) of the ORSP Rules, 1998 seems to provide a bar but then Rule 9(1) of the 1974 Rules provides for parity of such employees with their counterparts in government institutions. Thus, it basically boils down to whether the benefit under the TBA Scale can be treated as „pay‟ within the meaning of Section 9(1) of 1974 Rules, which is quoted hereinbelow.
"9. Drawal of pay and allowances by employees of Aided Institutions -[(1) Every employee of an Aided Educational Institution shall draw the same pay, dearness allowance and subsistence allowance in case of suspension as is admissible to counterpart in the Government educational institutions under the relevant rules applicable to him and shall ordinarily be paid in the month following the month to which the claim relates directly by Government or by any Officer or by-any Agency authorised by Government."Page 8 of 15
Reference to the ORSP Rules, 1998 shows that pay has been defined under Section 3(e) as follows:
"3 (e) "Pay" means the pay as defined in cluse (i) of sub-rule (a) of rule 33 of the Orissa Service Code in the existing scale and shall include -
(i) adhoc increment granted in the shape of personal pay on account of stagnation at the maximum of the existing scale;
(ii) personal pay granted due to fixation of pay under sub-rule (d) of rule74 of the Orissa Service Code; including the cases where reducible personal pay has been granted to protect the total emoluments on account of loss of special pay;
(ii) advance increment (s) granted, if any ;
11. Rule-4 deals with Scale of Pay and reads as follows:
4. From the date of commencement of these rules and subject to the provisions of rules, the revised scales of pay of the existing scales of pay as specified in column (2) of the First Schedule shall be as specified against it in column (3) there of.
12. Rule 33(a)(i) of the Odisha Service Code defines „Pay‟ as follows:
"(a) Pay means the amount drawn monthly by a Government servant as -
(i) 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-"Page 9 of 15
It follows that what is sanctioned to a government servant for the post held by him or to which he is entitled to by reason of his position in the cadre would be „pay‟.
13. In Office Memorandum dated 29.01.2002 the Finance Department has inter alia laid down as follows:
"2. To relieve stagnation and provide avenues of advancement to those, who have not been able to move to higher grade for want of promotion opportunities, a scheme of Time Bound Advancement (TBA) was introduced under the Orissa Revised scales of Pay rules. 1985. similar benefit of TBA has also been provided under the Orissa Revised scales of pay Rules, 1998 The TBA scale is basically meant to provide financial upgradation before regular promotion posts are available Hence, for determining the eligibility of an employee for the benefit of TBA scale, the following guidelines and clarifications are issued."
14. Thus, from the object and scheme of ORSP Rules, 1998 it is evident that granting benefit under the said Rules (TBA) entails the financial upgradation in that the scale of pay is raised to a higher level. It has been argued that such raising of pay or upgradation is nothing but an incentive. The Finance Department Office Memorandum dated 29.01.2002 also seems to say so as per paragraph-3 thereof, which is quoted hereinbelow.
Page 10 of 15
"3. The intention of granting Time Bound Advancement scale is to remove stagnation or give incentive to an employee after working the prescribed years of service or more in the same post/grade which means the post/grade carrying the same scale of pay."
15. What is an „incentive‟, has not been defined either in the ORSP Rules, 1998 or in any other relevant enactment. Per force, the Court would have to fall back upon the ordinary dictionary meaning of the word. The Oxford Advanced Learner‟s Dictionary in the new 9th Edition defines „incentive‟ as "something that encourages you to do; a payment or concession that encourages to do something;"
Thus, going by the plain and ordinary meaning of the word „incentive‟, it would appear to be a sort of reward being given to a person in return of doing something. As already stated, the intention of TBA was to relieve stagnation and provide the higher pay to those who have not been able to move to higher rank for want of promotion opportunities. By no stretch of imagination therefore, it cannot be and is not, a reward. Grant of such benefit entails raising of the existing scale of pay referred to as financial upgradation. Ordinarily understood, it would mean that the employee, who has been granted the benefit, would now receive a higher scale of pay.Page 11 of 15
It is not an addition to his pay by way of any allowance but the scale itself is raised to a higher level. In the illustrations cited in the Office Memorandum dated 29.01.2002, it is clearly discernible that by means of financial upgradation the concerned employees moves on to a higher scale of pay.
According to the considered view of this Court therefore, this financial upgradation involving the raising of the pay scale cannot therefore, be equated with incentive, which is usually understood as a reward in return of something done by the employee. Furthermore, this benefit is sanctioned in favour of the employee for the post held by him and therefore, would be included within the definition of pay as per Rule 33(a)(i) of the Odisha Service Code regarding Rule 9(1) of the 1974 Rules.
16. It has been further argued on behalf of the State that the TBA/ACP benefit is in the nature of GIA, which is within the discretion of the State but then in view of what has been narrated in the preceeding paragraphs, this Court rejects the arguments as being without any substance. GIA is governed by Section 7-C of the Odisha Education Act, Page 12 of 15 which is a sum of money set apart by the Government annually for being given to provide educational institutions in the State. It is not disputed that in the instant case, the educational institution in question had already come into GIA fold with the petitioners being recipient of direct payment of salary as per the orders of the approval issued in their favour. It is therefore, quite fallacious to equate GIA with that of financial upgradation by way of TBA.
17. Coming to the judgment cited by State Counsel it is seen that in that case the question was whether two increments granted to employees with green cards as per office memorandum dated 04.06.1985 could be treated as pay within the meaning of Rule-9 of the 1974 Rules. The Full Bench took note of the fact that the Government servants in possession of green cards with two children would be entitled to incentive allowance equal to the amount of one increment. It was further held that pay being the amount drawn monthly by a Government Servant which has been sanctioned for a post held by him substantively the amount paid as incentive allowance cannot be treated as Page 13 of 15 part of it. The case at hand is entirely different for, financial upgradation, it is stated at the cost of repetition, entails raising of the scale of pay altogether without there being any one time addition of allowance to the existing scale of pay. The scale itself undergoes an upward revision. This is effected solely to remove stagnation in one grade/post for a certain period of time.
18. Thus, from a conspectus of the analysis of facts and the relevant statutory provisions as also the discussion made hereinbefore, this Court holds that the benefit under TBA as per the ORSP Rules, 1998 cannot be treated as incentive but resulting in upward revision of the scale of pay of the employee, is „pay‟ within the meaning of Rule 9(1) of the 1974 Rules. Such being the interpretation, the petitioners are entitled to claim parity with their counterparts of the Government Educational Institutions.
19. For the foregoing reasons therefore, the writ petitions are allowed. The opposite party authorities are directed to grant TBA Scale to the petitioners from the date of completion of 15 years of continuous service and second Page 14 of 15 ACP from the date of completion of 25 years of continuous service along with arrears admissible within a period of four months from the date of communication of this judgment of on production of certified copy of this judgment.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack.
The 19th April, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Apr-2024 11:47:40 Page 15 of 15