Orissa High Court
Dibakar Mishra vs Secretary To Government Department Of ... on 18 August, 2017
HIGH COURT OF ORISSA,CUTTACK
W.P. (C) No.2638 of 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
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Dibakar Mishra ......... Petitioner
Versus
Secretary to Government, Department
Of School and Mass Education
and others ......... Opposite Parties
For Petitioner : Mr.Dayanidhi Mishra
For Opp. Parties : Mr. Amit Kumar Patnaik
Additional Government Advocate
Mr. Pradipta Kumar Mohanty
Standing Counsel (OPEPA)
.........
PRESENT:
THE HON'LE DR. JUSTICE D.P.CHOUDHURY
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Date of hearing:11.07.2017 Date of judgment: 18.08.2017
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Dr. D.P.Choudhury, J. Challenge has been made to the inaction of the
opposite parties for non-payment of the arrear dues of the petitioner
along with prayer for compensation and consequential benefits.
2. The factual matrix leading to the case of the writ petition is
that the petitioner has retired as a Head Clerk of the Collectorate of
Dhenkanal. Being selected under the Odisha Primary Education
Programme Authority Scheme (hereinafter called as "the OPEPA"), the
petitioner was appointed on 23.10.2003 as a Cashier in the District
Project Office, Sarva Sikhya Aviyan, Dhenkanal (in short "the SSA") on
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contractual basis at a consolidated remuneration of Rs.3348/- per
month. On 25.01.2007, the OPEPA enhanced the consolidated
remuneration of all contractual employees with effect from 01.04.2006
to the extent of Rs.4800/- for the post of Cashier and Rs.360/- as House
Rent Allowance per month. By virtue of said order, there was provision
for annual increase of 2% of consolidated remuneration from
01.04.2006. On 07.02.2007, opposite party no.4 recommended to fix the remuneration in accordance with Clause (ii) of Rule 9.3 (c) of Odisha Primary Education Programme Authority Service Rules and Regulations, 1996 (hereinafter called as "the Rules and Regulations, 1996") at the rate of Rs.5410/- per month vide Annexure-3 to the writ petition. On 15.03.2007, opposite party no.2 denied the claim of the retired employees for payment of remuneration at revised rate as they were getting remuneration as per Orissa Government Pension Rules, but said order of the opposite party no.2 was allegedly superseded as per the clarification issued by the OPEPA on 09.02.2009.
3. Be it stated that, on 08.06.2009, the salary of all the contractual employees of SSA including the retired employees have been enhanced at the rate of 47% of pay with effect from 01.04.2008. Also on 28.05.2009, the special allowance at the rate of Rs.500/- per month was allowed for the post of cashier only. In the year 2010, the medical allowance of employees has been enhanced at the rate of Rs.300/- per month with effect from 01.04.2010, but the petitioner was not paid such -3- enhanced remuneration and the allowances available to the post of Cashier.
4. On 04.07.2009, the petitioner had made representation but there is no effect to such representation. On 21.07.2010, the petitioner filed a writ petition before this Court, which was registered as W.P.(C) No.17485 of 2010 and the same was disposed of by this Court by directing the opposite party no.4 to dispose of the representation of the petitioner dated 04.07.2009 in accordance with law within a period of two months. In spite of filing of the representation with the copies of the pay acquaintance roll of similarly situated employees of SSA Scheme, who are receiving the enhanced remuneration as per the order of the OPEPA and also opposite party no.4 having admitted said fact, but denied to extend such benefits to the petitioner because the petitioner is getting remuneration as per Orissa Government Pension Rules. It is stated that the opposite parties have failed to pay the remuneration of the petitioner on enhanced rate as per the order of the OPEPA issued from time to time. It has also failed to pay the allowances to the petitioner at different occasions although the same are being paid to similarly situated employees. So, the petitioner, having pleaded about the discrimination and about the violation of the principles of law, filed the present writ petition.
5. SUBMISSIONS Mr.D.Mishra, learned counsel for the petitioner submitted that the petitioner has retired as a Head Clerk and he has been -4- appointed duly as a Cashier under the SSA Project on payment of consolidated amount, but he has not been paid the said consolidated amount as per the revised order of the OPEPA. He further submitted that the action of the opposite parties to deny the claim of the petitioner is illegal and improper.
6. Mr.Mishra, learned counsel for the petitioner further contended that as a Cashier, the petitioner is entitled to the enhanced remuneration and other allowances as per Clause (ii) of Rule 9.3(c) of the Rules and Regulations, 1996. The remarks of opposite party no.2 in his letter dated 15.03.2007 that the cases of the retired employees for payment of remuneration at revised rate are ignored as they are getting remuneration as per Orissa Government Pension Rules is quite illogical and imaginary because such observation violates Clause (ii) of Rule 9.3(c) of the Rules and Regulation, 1996. Moreover, he submitted that such order of the opposite party no.3 has been superseded by the clarification issued by the OPEPA in its order dated 09.02.2009. The medical allowance of the employees has been enhanced to Rs.300/- per month with effect from 01.04.2010 and the petitioner being entitled, but the same has been ignored. The petitioner is also entitled to the special allowance for the post of Cashier but the same has also not been paid to him. He further stated that the petitioner has been discriminated about the availability of the remuneration and the allowances because such benefit has been extended to other similarly situated employees. So, he submitted to allow arrear revised remuneration along with other -5- allowances to the petitioner by quashing the order of refusal passed under Annexure-12 to the writ petition.
7. Mr.Mohanty, learned Standing Counsel for the OPEPA submitted that the petitioner was engaged by the Collector-cum- Chairman, SSA, Dhenkanal on contractual basis as per the Rules and Regulation, 1996 which shows that retired Government employees engaged on contractual basis due to having their experience under District Primary Education Programme (DPEP) Project and Government Offices vide order dated 23.10.2003. He further submitted that as per OPEPA Order No.543 dated 25.01.2007, opposite party no.4 submitted proposed pay structure to fix remuneration of the petitioner along with other directly engaged staff of the District Project Office, SSA Dhenakanal and as per the proposal of District Project Office, SSA Dhenkanal, opposite party no.2 sent back the approved revised salary of all the staff except the present petitioner vide letter dated 15.03.2007 mentioning that the revised remuneration of retired Government employees has been ignored as they are getting their remuneration as per the Odisha Government Pension Rules. He further submitted that since the petitioner was getting the pension as per the Orissa Government Pension Rules, he is not entitled to the benefit accrued to other employees.
8. Mr.Mohanty, learned Standing Counsel for the OPEPA further contended that increase of the remuneration was also denied to the petitioner because of his pension received under Orissa Government -6- Pension Rules. Moreover, the clarification issued by OPEPA in its letter dated 04.02.2009 does not supersede the remark as per letter dated 15.07.2009 of opposite party no.2. The order dated 08.06.2009 also does not relate to the enhancement of the salary of all contractual employees of SSA including the retired employees at the rate of 47% of pay with effect from 01.04.2008 whereas it is mentioned that the salary will be enhanced 47% of pay with effect from 01.04.2008 except some employees coming under different categories.
9. Learned counsel for the OPEPA further stated that the special allowance of Rs.500/- per month to the Cashier and the medical allowance of Rs.300/- per month as claimed by the petitioner were proposed to the State Project Office of OPEPA by the DPC, SSA Dhenkanal, but the same was not considered as the petitioner was a retired Government employee and in the meantime he has been disengaged from service with effect from 30.04.2010 due to overage. Since the service of the petitioner is not a service of regular employee but on contract basis as a retired employee, his representation for enhancement of the salary, HRA and other allowances are not allowed to him. Moreover he is a retired Government employee and only engaged on contract basis with consolidated remuneration under the Rules and Regulations, 1996 and no similarly situated employees have been extended such benefits as claimed by the petitioner. So, there is no question of discrimination meted out to the petitioner for which the writ petition should be dismissed.
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10. POINT FOR CONSIDERATION Whether the petitioner is entitled to the enhanced consolidated remuneration and other allowances?
11. DISCUSSIONS It is the admitted fact that the petitioner, after his retirement from Government service, was engaged as a Cashier under the District Project Office, SSA Dhenkanal on contract basis with a consolidated remuneration. It is not in dispute that the petitioner has received his pension as per the affidavit filed by him and the said pension has also been increased from time to time, as per the norms of the Government. It is admitted fact that the petitioner was not allowed the increase of the remuneration and the allowances like HRA, medical allowances and special allowances as a Cashier because he is a retired Government employee. It is also not in dispute that the petitioner had approached this Court in W.P.(C) No.17485 of 2010 and this Court, vide its order dated 21.07.2011, directed the DPC, SSA Dhenkanal to consider the representation within a period of three months and the same has been disposed of vide Annexure-12 to the writ petition.
12. There is no doubt that Annexure-1 to the writ petition directs for engagement of the petitioner as a Cashier on a monthly consolidated pay of Rs.3348/-. Annexure-2 shows that on 25.01.2007, the contractual employees of the OPEPA was allowed 10% of the consolidated remuneration as HRA while being posted at Cuttack and Sambalpur and in the case of Rayagada, it is 7.5% of said remuneration. -8- Under the same office order, 2% annual increase of the consolidated remuneration was allowed to the directly engaged staff subject to review of their performance. Annexure-3 shows that the opposite party no.4 sent revised consolidated remuneration to the State Project Director, OPEPA, Bhubaneswar wherein the present petitioner are proposed to be given Rs.5410/- per month which includes enhance remuneration, HRD and incentives whereas as a retired Government employee, he has got his last pay drawn at Rs.5900/- as per the endorsement made in the remark column of the calculation sheet.
13. Annexure-4 refers to Chapter-III of the Rules and Regulations, 1996 and Sub-clause (i) and (ii) of Clause-9(c) read as under:
"(i)- His pay in the scale prescribed by the Authority may be fixed at the stage of the last pay he drew before retirement and if there is no such stage, at the stage below the last pay. The uncommuted pension as fixed may be deducted from the pay so fixed and he may be allowed the balance amount as pay. He shall be entitled to Dearness Allowance, at the present rate prescribed by the Government under whom he served prior to retirement on the full amount of pay fixed neglecting the deduction of pension made. He shall draw his pension from Government including interim relief and his temporary increase on pension shall be kept suspended during the period of re-employment. He shall draw increment in the scale on completion of one year from his date of re-employment subject to such stage being available in the scale in which he re-employed; and
(ii)- In case where a retired Government servant is appointed on contract basis he may have the option to get his pay fixed under clause (i) of this sub-rule.
In case he does not opt the said principle he may be allowed a fixed amount of pay which shall not be more than the pay he drew before his retirement. He -9- shall not be allowed any dearness allowance and he shall continue to draw his pension, temporary increase and interim relief as sanctioned by the authority under whom he served before retirement." From the aforesaid provision, it appears that where a retired Government servant is appointed on contract basis, he has option to get his pay fixed under clause (i) or to be allowed a fixed amount of pay, which shall not be more than the pay he drew before his retirement. Moreover, such employee shall not be allowed any dearness allowance but he would be allowed regular pension, temporary increase and interim relief as sanctioned by the authority under whom he has served before retirement. Said rule is silent about denying any other allowance payable to employees engaged after retirement as they are also directly engaged on contractual basis.
14. The aforesaid provisions also do not debar the contractual employee appointed after retirement to receive the revised contractual amount. In the present case while Annexure-2 series disclose that the Office of the State Project Director of OPEPA has granted an annual increment of 2% of the consolidated remuneration to the engaged staff subject to review of their performance, the reason for such increase has been given to maintain a priority among the staff and officers who have joined in 2003 would get extra remuneration on the basis of their seniority over those who have joined in 2004 and 2005. On the other hand, the employees, who have joined in 2003 should get more than the employees joined in 2004-2005 even if all are employees of OPEPA. Annexure-3 shows that the revised consolidated remuneration
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calculation-sheet has been sent by the District Project Coordinator, SSA, Dhenkanal by relying upon Annexure-2 series and in that calculation- sheet, the name of the petitioner finds place whose total emolument is Rs.5410/-, which is not exceeding the last pay drawn in compliance to Rule-9(c)(ii) of the Rules and Regulations, 1996. But, Annexure-5 shows that the State Project Director did not allow the revised pay, house rent and other incentive to the petitioner on the ground that revised remuneration of the retired Government employees has been ignored as they are getting remuneration as per Orissa Government Pension Rules.
15. The reasons assigned above for not allowing the petitioner to receive revised remuneration lacks basis inasmuch as he is receiving the contractual consolidated amount attached to the post and if at all, he would receive less remuneration, the persons recruited along with him or recruited later on, would get more consolidated amount, there would be inequality in payment of the remuneration attached to the post. For that one circular issued by OPEPA on 04.02.2009 vide Annexure-6 clearly shows that the contractual employees of OPEPA means all the contractual employees of OPEPA of State Project Office or District Project Office working under the Project Management. Since all contractual employees are treated equally and work equally, bereft of restrictions as per Clause -9(c)(i)(ii) of the Rules and Regulations, 1996 no other rules prohibit to the entitlements of petitioner at par with other similarly situated contractual employees, the observation by opposite party no.2 denying the claim of the petitioner is unwarranted and
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unjust. If there is no equality maintained amongst the staff, there is clear discrimination of petitioner violating Article 14 of Constitution. The availability of pension etc. cannot be a ground to deny the benefit because the petitioner is a contractual employee who is receiving the consolidated amount but not the dearness allowance thereon as available to the other employees, who are also appointed on contractual basis. It is needless to say that the dearness allowance always fixed in accordance with the pay attached to the post.
16. Since the Rules and Regulations of 1996 do not deny about availability of allowance like HRA and other allowances and the Office Order dated 25.01.2007 allows HRA of 10% or 7.5%, as the case may be, qua the place they served, the petitioner is also entitled to such HRA. Likewise the incentive of Rs.250/- per month as prescribed in Annexure-3 should be also allowed to the petitioner as that is paid to encourage for promoting the project. Thus, the action of the State Project Director denying all these benefits to the petitioner vide Annexure-5 is a serious discrimination to the petitioner whereas he is entitled to receive the same as per Annexure-4 from the date it is applicable under Annexure-5 to similar contractual employee.
17. Admittedly the petitioner was working as a Cashier and there is special allowance of Rs.500/- per month attached to such post. It must be remembered that special allowance is attached to the post and the person holding that post is entitled to such special allowance. Hence, the post of Cashier carries the special allowance for the
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honorious responsibility of accounts and cash burden on the Cashier. Since the petitioner is holding that post of Cashier, he cannot be denied the same even if he is a retired Government employee. So, he is entitled to such special allowance of Rs.500/- per month from the date of his engagement.
18. Annexure-7 series shows that the Office Order was issued on 03.04.2010 basing on the decision of the 26th Executive Committee meeting of the OPEPA under the Chairmanship of Chief Secretary and Chairman of the Executive Committee, OPEPA vide Item No.30 that the contractual employees of OPEPA were allowed to avail medicine allowance of Rs.300/- per month with effect from 01.04.2010. Even if retired Government employees getting pension, temporary increase but not receiving any house rent allowance or medical allowance. When all contractual employees of OPEPA are equally placed, the petitioner should not be discriminated by refusing medicine allowance available to other contractual employees so that Article 14 of the Constitution is not violated. So, he is also entitled to medicine allowance of Rs.300/- with effect from 01.04.2010 till his disengagement from OPEPA, i.e., on 30.04.2010.
19. Learned counsel for the petitioner placed letter dated 20.10.2009 of the District Project Coordinator, SSA, Dhenkanal and further submitted that the remuneration of the employees has been enhanced to 47% vide OPEPA Office Order No.4275 dated 08.06.2009, but the same are not being paid to the petitioner and the District Project
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Office, Dhenakanal has only sought for clarification as to availability of such remuneration to the petitioner. He again contended that such remuneration, being enhanced from time to time, should be also made available to the petitioner.
20. Learned counsel for the petitioner drew attention of the Court to Annexure-11 series wherein the Accountant and Cashier in the district of Puri have been paid the HRA and other allowances with enhanced pay having been situated in the same footing as that of the petitioner. There is no serious challenge to such averment by the learned Standing Counsel for OPEPA.
21. Learned counsel for the petitioner further drew attention of the Court to Annexure-G/2, an Office Order dated 03.06.2009 of the Office of the State Project Director, OPEPA, which shows that OPEPA has enhanced the consolidated remuneration of contractual employees at the rate of 47% with effect from 01.04.2008 except certain categories of employees. The post held by the petitioner, i.e, Cashier is not included in the exempted category for which the employees for the said post is also entitled to enhancement of consolidated remuneration at the rate of 47%. By reading Annexure-F/2, it is clear that contractual employees of OPEPA means all the contractual employees of OPEPA (SPO & DPO) working under the Project Management. Since all the contractual employees, as stated above, are on the same footing, the enhancement of the consolidated remuneration at the rate of 47% is also applicable to the petitioner even if he is a retired Government employee.
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22. By order dated 21.07.2011 passed by this Court in W.P.(C) No.17485 of 2010, the opposite party no.3 has been directed to consider the representation of the petitioner claiming arrear salary. Annexure-12 is the order passed in pursuance of the representation filed by the petitioner, as directed by this Court. The relevant portion of the impugned order denying the claim of the petitioner is placed below for reference:
"xx xx xx xx Having gone through the records and documents, representation and statements submitted by the petitioner and relevant records of OPEPA, I am of the opinion that it is not possible on the part of the District Project Co-ordinator to pay the petitioner his arrear salary in revised rates. Letter No.1793(31)/FIN/07, Dt.15.03.2007 of State Government employees has been ignored as they are getting remuneration as per Orissa Government Pension Rules." Since there is no provision for payment of enhanced rate of remuneration to the contractual retired employees engaged in SSA office, so the District Project Co-ordinator (DPC) cannot give to the petitioner his arrear remuneration as per the prescribed pay structure basing on the Gross Salary fixed and paid to other fresh contractual employees as per the above instruction of the OPEPA. The salary of other fresh employees was enhanced from time to time on the basis of their pay structure except retired Government employees engaged in SSA.
Sd/-
District Project Co-ordinator SSA, Dhenkanal"
From the aforesaid observation of the opposite party, it appears that the petitioner has been denied the arrear claim mainly because of the observation of the State Project Office in its letter dated 15.03.2007 (Annexure-5) that the revised remuneration of retired
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Government employees has been ignored as they are getting their remuneration as per Orissa Government Pension Rules. It has been already observed that such observation in Annexure-5 dated 15.03.2007 is unwarranted because of the reasons, as delineated above. Apart from this, the opposite party, except quoting this one in the impugned order, has not analyzed cogent reasons under which the petitioner is disentitled to the arrear claim. On the other hand, disposal of the representation has not been considered independently but is just a replica of the letter dated 15.03.2007 and there is no speaking order passed by the opposite party refusing the claim of the petitioner. Every order is pre-supposed with rational reasons and any unreasoned order, in the eye of law, cannot stand to the scrutiny.
23. In terms of the above discussion, when after scrutiny it is observed that the petitioner being on the same footing of other contractual employees and eligible to consolidated remuneration and allowances except dearness allowance as per Rules and Regulation, 1996 and further clarified by the OPEPA that all contractual employees are being in the same footing, refusal of the benefit according to him is not only discriminatory but also in violation of Article 14 of the Constitution. So, the petitioner is entitled to enhancement of the consolidated remuneration and other allowances. The point is answered accordingly.
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24. CONCLUSION The petitioner, in the writ petition, made a prayer for setting aside the impugned order (Annexure-12) and the opposite parties may be directed to pay the arrear enhanced remuneration at the revised rate including other allowances. It is reiterated that Annexure-12, being fallen short of doctrine of equality and being a non-speaking order and having observed that the petitioner suffered from discrimination, the same is liable to be quashed and the Court do so.
25. As per the above discussion, the petitioner is entitled to the enhanced remuneration at the revised rate, special allowance, house rent allowance and other incentives except the dearness allowance from the respective dates, as applicable to other contractual employees as per Annexure-9, this Court directs to pay the same to the petitioner within a period of three months from today after proper settlement of accounts.
The writ petition is disposed of accordingly.
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Dr.D.P.Choudhury,J.
Orissa High Court, Cuttack Dated the 18th Day of August, 2017/B.Nayak