Orissa High Court
Akshaya Kumar Nayak vs M.D on 22 March, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.8427 of 2021
An application under Articles 226 and 227 of the
Constitution of India.
Akshaya Kumar Nayak . Petitioner
Mr. S.P. Pati, Advocate
-versus-
M.D., Odisha State Cashew . Opp. Parties
Development Corporation Ltd.
and another
Mr. Debasish Nayak, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 12.03.2024 | Date of Judgment: 22.03.2024
_____________________________________________________
A.K. Mohapatra, J. :
1. Heard Mr. S.P. Pati, learned Counsel for the Petitioner and Mr. Debasish Nayak, learned Additional Government Advocate for the State-Opposite Parties.
2. Perused the writ application as well as document annexures. The present writ application has been filed in the following prayer;
"It is therefore prayed that the Hon'ble Court be pleased to admit the writ application, issue notice to // 2 // the opp. Parties as to why this writ petition shall not be allowed, And if the opp. Parties fail to show cause or show insufficient cause, allow the writ petition with cost and appropriate writ/writs be issued to opp. Parties with the following directions:-
(i) Rejection of representation vide Office Order No.83 dated 12.01.2021 as at Annexure-8 may be quashed, And
(ii) Opp. parties be directed to modify the Grade Pay of petitioner by allowing the Grade pay of Rs. 4,200/- towards 1 and 2nd financial upgradation with effect from 01.01.2013 and Grade Pay of Rs.4,600/- towards 3d upgradation with effect from 23.02.2015, against the promotional posts in the hierarchy as per the principle settled in W.P. (C) No. 2831 of 2016 (State of Odisha Vs. Bihari Lal Barik & others) Annexure-5, And
(iii) Accordingly to release the differential salary of the petitioner alongwith arrears within a stipulated period, And
(iv) Penal interest on the differential salary be paid to the petitioner,
(v) And be pleased to pass such other order/orders as deemed fit and proper in the facts and circumstances of the case,"
3. The Petitioner has approached this Court by filing the present writ application with a prayer for quashing the impugned rejection order dated 12.01.2021 under Annexure-8 to the writ application and further for a direction to the // 3 // Opposite Parties to modify the Grade Pay of the Petitioner by allowing the Grade Pay of Rs.4,200/- towards 1st and 2nd financial upgradation w.e.f. 01.01.2013 and a Grade Pay of Rs.4,600/- towards 3rd financial upgradation w.e.f. 23.02.2015 against the promotional post in the hierarchy as per the Finance Department resolution dated 06.02.2013 under Annexure-3 to the writ application and also in terms of the judgment of the Hon'ble Supreme Court in State of Odisha and another v. Bihari Lal Barik and others in W.P.(C) No. 2831 of 2016 under Annexure-5 series to the writ application.
4. The factual background leading to the filing of the present writ application, in short, is that the Petitioner was initially appointed as a Plantation Assistant in the Opposite Party-Corporation on 23.02.1985. While working on adhoc basis the service of the Petitioner was regularized. Thereafter, the Petitioner was promoted to the post of Plantation Supervisor vide office order No.1778 dated 05.04.2018 under Annexure-1 to the writ application. Further, during the pendency of the present writ application, the Petitioner has retired from service on attaining the age of superannuation w.e.f. 31.05.2022.
// 4 //
5. Learned counsel for the Petitioner contended that on 06.02.2013, the Finance Department, Government of Odisha issued the notification No.3560/A thereby declaring financial upgradation of the existing employees who have completed ten years of service without being promoted to the next higher rank. The aforesaid resolution of the Finance Department provides three financial benefits; (i) on completion of ten years of service, (ii) on completion of twenty years of service and
(iii) on completion of thirty years of service.
6. Referring to the aforesaid notification dated 06.02.2013 under Annexure-3, learned counsel for the Petitioner submitted that the Petitioner is entitled to the 1st and 2nd financial benefits w.e.f. 01.01.2013 and is also eligible for the 3 rd financial upgradation w.e.f. 23.02.2015 with a Grade Pay of Rs.4,600/- in PB-2. Learned counsel appearing for the Petitioner further submitted that, the petitioner had earlier approached this Court by filing a writ application bearing W.P.(C) No.17511 of 2020. A Coordinate Bench of this Court disposed of the said writ application vide order dated 18.08.2020 under Annexure-7 with a direction to the opposite parties to consider the representation of the Petitioner by taking into consideration the law laid down // 5 // by the Hon'ble Supreme Court in Bihari Lal Barik's case (supra) within a stipulated time.
7. After disposal of the earlier writ application, the Petitioner approached the Opposite Party-Corporation by filing a representation as per the direction of this Court in the earlier writ application. The said Opposite Party-Corporation rejected the claim of the Petitioner vide order dated 12.01.2021 under Annexure-8 to the writ application. While rejecting the claim of the Petitioner the Opposite Party-Corporation has held that since the post of Plantation Supervisor is an ex-cadre post and the Petitioner who is working as a Plantation Assistant which is not a feeder post to the post of Plantation Supervisor, the post of Plantation Supervisor cannot be construed as a promotional post for Plantation Assistant. As such the Petitioner is not entitled to the financial upgradation in view of the notification of the Finance Department dated 06.02.2013 under Annexure-3 and the clarification thereto in clause 12 of Annexure-10 to the writ application. Accordingly, the claim of the Petitioner has been rejected. However, while rejecting the claim of the Petitioner, the Opposite Party-Corporation has granted an increment to the Petitioner.
// 6 //
8. Learned counsel for the Petitioner submitted that the clarification under Annexure-10 was the subject matter of dispute in Bihari Lal Barik's case (supra). A Division Bench of this Court has held that Clause-12 of the clarification runs contrary to clause-10 of the original notification dated 06.02.2013. Therefore, the same was quashed. The judgment delivered by this Court in Bihari Lal Barik's case (supra) has been upheld by the Hon'ble Supreme Court. In such view of the matter, learned counsel for the Petitioner submitted that the case of the present Petitioner is squarely covered by the ratio laid down in Bihari Lal Barik's case (supra). Accordingly, it was contended that the opposite parties be directed to extend the financial benefits as is due and admissible to the Petitioner under the Finance Department notification dated 06.02.2013 under Annexure-3 to the writ application.
9. Learned counsel for the Opposite Party-Corporation, on the other hand, referred to the counter affidavit filed by the opposite parties. It was submitted by him that after disposal of the earlier writ application by this Court, the matter was placed before the Board of the Opposite Party-Corporation. The Board of Directors in its meeting held on 23.02.2021 has elaborately discussed the case of the present Petitioner and similarly // 7 // situated other employees. On such consideration, the Board has categorically held that Clause-10 of the resolution dated 06.02.2013 has been explained and clarified under point No. 12 of the Finance Department, Memo No.1738/F dated 20.01.2014. Furthermore, in view of the aforesaid clarification vide memo dated 20.01.2014, the committee observed that the post of Plantation Supervisor, i.e. the promotional post of Plantation Assistant, is an ex-cadre post and accordingly, it was recommended for allowing the petitioner the next higher Grade Pay i.e., Rs.2000, Rs.2,200/- and Rs.2,400/- to the Petitioner under the three financial upgradation pursuant to the resolution dated 06.02.2013.
10. Learned counsel for the Opposite Party further contended that the Board of Directors in their committee meeting had taken note of the order passed by this Court in the case of the Petitioner as well as the order passed in Bihari Lal Barik's case (supra) which was confirmed by the Hon'ble Apex Court. However, on such consideration they found that the ratio laid down by this Court in Bihari Lal Barik's case (supra), which was ultimately confirmed by the Hon'ble Apex Court, that the aforesaid judgement is not applicable to the facts of the Petitioner's case as the post of Plantation Supervisor is // 8 // an ex-cadre post as per the recruitment and promotion rules of the Corporation. Accordingly, the representation of the Petitioner was rejected by the Board of Directors of the Opposite Party-Corporation. While rejecting the representation, the Board of Directors have observed that the Board has been pleased to grant one special increment in favour of the Petitioner and similarly situated other employees in order to avoid discontentment and injustice to them in earlier years, since employees in lower grade are getting more salary which may have no precedence for other employees from 1st January, 2021.
11. Learned counsel for the Opposite Party further referring to the grant of special increment submitted that such special increment has already been accepted by the Petitioner and similarly situated other employees of the Corporation, therefore their such conduct is hit by the principles of acquiescence and waiver. In view of the aforesaid submissions the Learned counsel for the Opposite Party submitted that the present writ application is devoid of merit and as such, the same is liable to be dismissed.
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12. Having heard the learned counsel for the parties, on a careful analysis of the submissions of the counsels as well as the pleadings of the respective parties and the document annexed thereto, this Court is required to adjudicate as to whether the post of Plantation Supervisor is a promotional post of Plantation Assistant and whether the same is an ex-cadre post and. whether the ex-cadre posts are covered under the resolution of the Finance Department dated 06.02.2013?
13. On a perusal of the pleadings of the Parties and on a careful analysis of the submissions made by the parties, this Court observes that the dispute with regard to the fact that the Petitioner was appointed as a Plantation Assistant and thereafter he was promoted to the post of Plantation Supervisor under Annexure-1 to the writ application is not disputed by either side. Further, on perusal of the service rules which have been filed before this Court, it appears that the both the posts come under Grade-III albeit in different categories i.e., (C) and (A). It is also not disputed that the post of Plantation Supervisor is the promotional post of Plantation Assistant.
14. The post of Plantation Supervisor is an ex-cadre post as there is no promotional hierarchy provided under the rules of // 10 // the Corporation. However, it is also not disputed that the Petitioner was given promotion from the post of Plantation Assistant to the post of Plantation Supervisor. Even assuming that the post of Plantation Supervisor is an ex-cadre post, this Court is required to examine as to whether the same is covered under the Finance Department resolution dated 06.02.2013. In case it is found that the ex-cadre posts are covered under the resolution under Annexure-3 dated 06.02.2013, only then the Petitioner will be entitled to the 3rd RACP grade of pay at the rate of Rs.4,600/- in PB-2 as claimed by the Petitioner.
15. A similar question arose before this Court in Bihari Lal Barik's case (supra) wherein a stand was taken that the RACP benefits cannot be considered on the basis of ex-cadre posts by relying upon the clarification of the Finance Department dated 20.01.2014 under Annexure-10, more particularly Clause-12 of the said clarificatory resolution. On the contrary the resolution dated 06.02.2013 under Annexure-3, under Clause-10, clearly provides that the ex-cadre posts are covered under the said resolution. A Division Bench of this Court in Bihari Lal Barik's case (supra) decided the aforesaid issue by a judgment dated 27.06.2016. While adjudicating the aforesaid writ application the Hon'ble Division Bench of this Court in Para-
// 11 // 16 of the judgment has specifically referred to Para-10 of the resolution under Annexure-3 and, while considering Clause-12 of the resolution dated 20.01.2014, the Hon'ble Division Bench has categorically held that such clarification is absolutely contradictory to Para-10 of the RACP scheme vide notification dated 06.02.2013 under Annexure-3 to the writ application.
16. Furthermore, the Division Bench has also observed that such clarification has no legislative value. Whereas, the scheme under Annexure-3, in the absence of any specific rule, has some binding effect. Accordingly, the validity of Para-10 was retained while rejecting Point No.12 of the clarificatory notification under Annexure-10 to the writ application. The aforesaid judgment of this Court was assailed before the Hon'ble Supreme in SLP No. 20358 of 2020, which was dismissed by the Hon'ble Supreme Court, as a result of which the judgment of the Hon'ble Division Bench of this court has attained finality and the same is binding on this Court so far the issue involved and adjudicated in the said judgment.
17. By applying the ratio laid down in Bihari Lal Barik's case (supra), this Court is of the considered view that, Para-10 of the resolution dated 06.02.2013 shall override Clause-12 of // 12 // the clarificatory memo dated 20.01.2014 under Annexure-10 to the writ application. Therefore, it appears that the Board of Directors of the Corporation have not understood the judgment in Bihari Lal Barik's case (supra) in its proper prospective as a result of which a mistake was committed by referring to Clause-12 of memo dated 20.01.2014 under Annexure-10 in the impugned rejection order.
18. In such view of the matter, this Court is of the considered view that the Opposite Party-Corporation has committed a serious illegality by rejecting the claim of the Petitioner for grant of RACP benefits by taking into consideration the fact that the post of Plantation Supervisor is a promotional post and to which post the Petitioner was subsequently promoted. Ultimately, the present writ application stands allowed and the impugned rejection order dated 12.01.2021 under Annexure-8 is hereby quashed. Further, the Opposite Party-Corporation is directed to grant 1st and 2nd RACP benefits to the Petitioner w.e.f. 01.01.2013 with Grade Pay of Rs.4,200/- and the 3rd RACP benefit w.e.f the completion of thirty years of service on 23.02.2015 at the rate of Rs.4,600/-. It is open to the Opposite Party-Corporation to adjust the special increment against the RACP benefits, if such // 13 // a decision is taken by the Board of Directors. Further the financial benefits under the resolution under Annexure-3 as have been directed hereinabove shall be calculated, sanctioned and disbursed in favour of the Petitioner within two months from the date of communication of a copy of this judgment by the Petitioner.
19. Accordingly, the writ petition is allowed in terms of the direction given hereinabove. However, there shall be no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 22nd of March, 2024/ S.K. Rout/Jr. Steno. Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication
Location: High Court of Orissa, Cuttack Date: 03-Apr-2024 20:27:16