Orissa High Court

Ajoy Kumar Mohapatra vs State Of Odisha & Ors on 23 August, 2021

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              WPC(OA) No.1592 of 2017


            Ajoy Kumar Mohapatra                    ....             Petitioner
                                                         Mr. P.K. Mohapatra,
                                                                   Advocate
                                        -versus-
            State of Odisha & Ors.                  ....      Opposite Parties
                                                           Mr. N.P. Praharaj,
                                                           Standing Counsel


                      CORAM:
                      JUSTICE BISWANATH RATH
                                     JUDGMENT

23.08.2021 Order No.

5. 1. Originally the application bearing O.A. No.1592 of 2017

was filed before the Odisha Administrative Tribunal, Bhubaneswar.

On abolition of the Tribunal the matter is transferred to this Court

for exercising its jurisdiction involving the dispute involved herein.

2. This Petitioner by way of present application has sought for

the following relief:

" Relief(s) sought:-

In view of the facts mentioned in paragraph 6 herein above the applicant prays for the following relief(s);

(i) The Hon'ble Tribunal may please to quash the order at Annexure-9.

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(ii) The Hon'ble Tribunal may please to direct the respondents to accept the request of the applicant for revised option in view of his application at Annexure-

(iii) The respondents may be directed to extend the applicant all consequential financial benefit after accepting the revised option as requested under Annexure-6.

(iv) Any other relief(s) as deem fit and proper."

3. Background involved in this case is that the Petitioner was

appointed as a Sub-Assistant Engineer on 1.08.1981. Subsequently

this post was re-designated as Jr. Engineer (Civil). During his

service tenure the Petitioner had worked in different Blocks under

the erstwhile C.D. & R.R. Department; presently known as

Panchayati Raj & Drinking Water Department. At a later stage the

Petitioner worked under the Cuttack Municipal Corporation from

20.02.1996 to 13.03.2001 on deputation basis. While the matter

stood thus the Petitioner was again reverted back to his parent

department. As a consequence of several transfers and deputation

outside the Department the Petitioner was not granted annual

increments w.e.f. 1.08.1983 and due to non-sanction of leave while

working in Kakatpur Block, further due to non-transfer of LPC and

Service Book even after his reversion to the parent cadre and his

emoluments having not been regularized, the Petitioner approached

the Odisha Administrative Tribunal in O.A. No.816(C) of 2002. For

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the direction of the Tribunal the leave period was sanctioned by the

B.D.O, Kakatpur on 20.12.2002, whereafter pay of the Petitioner has

been revised by the Opposite Party No.3. There have also been

consequential revisions under the subsequent O.R.S.P. Rules come

to the existence in the meantime. It is alleged that as the pay of the

Petitioner was revised with retrospective effect by the orders at

Annexures-1, 2 & 3, the Petitioner could only get chance to exercise

his revised option by making an application vide Annexure-6 for

consideration of the competent authority. It is claimed that on

consideration of the application vide Annexure-6 the competent

authority by its order vide Annexure-8 came to observe that the

inconvenience to the Petitioner in the matter of exercising the

revised option is caused due to subsequent revisions with

retrospective effects and for no fault of the Petitioner. The Engineer-

in-Chief (Civil), Orissa in its communication has also indicated the

entitlement of the Petitioner on the basis of the revised option. It is

alleged that in spite of such recommendation made by the Engineer-

in-Chief (Civil), Government of Odisha, the claim of the Petitioner

on revised option has been rejected merely on the ground that the

case of the Petitioner does not fit within the exceptional

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circumstances as defined at paragraph no.5 of the Finance

Department Office memorandum dated 22.09.1999.

4. On reiteration of the facts recorded hereinabove,

Mr. Mohapatra, learned counsel for the Petitioner drawing the

attention of this Court to the order vide Annexure-4 attempted to

establish that for the admitted position that there has been

subsequent revision of the scale of pay of the Petitioner on

regularization of the several aspect, the case of the Petitioner

squarely comes within the parameters of (iii) clause 5 of the Office

memorandum dated 22nd September, 1999 vide Annexure-4. Taking

this Court to the further plea in paragraph No.6.8 Mr. Mohapatra,

learned counsel for the Petitioner also alleged that in similar

situation even though there has been extension of such benefit to one

Sri Jameswar Pradhan working under the administrative control of

Respondent No.1 on consideration of his application dated

6.08.2012, as evident from the letter dated 29.12.2013, the Petitioner

has been discriminated thereby. It is, in the premises,

Mr. Mohapatra, learned counsel for the Petitioner prayed for

allowing the writ petition with appropriate direction to the

competent authority for providing benefit to the Petitioner.

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5. Mr. Praharaj, learned Standing Counsel for the contesting

Opposite Parties, on the other hand, taking this Court to the

averments made in the counter affidavit submitted that for the

admitted position that there has been regularization of scale of pay/

sanction of leave, subsequently the Petitioner has no scope for

having revised option. Further taking this Court to the plea of

rejection of the claim of the Petitioner by the Finance Department,

Mr. Praharaj, learned Standing Counsel also attempted to justify the

action of the authority. There is, however, no denial to the fact that

there has been revision in the scale of pay as well as grant of leave

involving the Petitioner; though made subsequently, but with

retrospective effect. There is no dispute to the fact of

recommendation made by the Engineer-in-Chief (Civil) as borne

from Annexure-8, by Mr. Praharaj, learned Standing Counsel.

6. It is here considering the rival contentions of the parties, this

Court finds, undisputedly the Petitioner has been transferred from

place to place on several times even on deputation basis to outside

the Department resulting non-regularization of the scale of pay of

the Petitioner in spite of revision of the scale of pay from time to

time. Pleadings further disclose that on coming back of the

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Petitioner to the parent Department, there has been attempt by the

concerned Department to regularize the scale of pay of the

Petitioner. As a consequence, there has been revision of scale of pay

of the Petitioner with further revision of the leave payment involving

the Petitioner, but however with retrospective effect. Since there has

been different breaks in the scale of pay involving the Petitioner on

account of involvement of so many transfers one even including

deputation to outside the Department, there has been unnecessary

burden on the Petitioner and the suffering to the Petitioner has

occurred for no regularization of the revision of the scale of pay of

the Petitioner and also no regularization of leave at appropriate time.

7. Now coming to the fact that there has been revision in the

scale of pay on the attempt of the Department and for grant of such

revision in the scale of pay of the Petitioner with retrospective effect

on a subsequent date, there remains no doubt that the Petitioner

could not get scope of exercising additional exercise. It is, at this

stage of the matter, this Court from the discussion of the Engineer-

in-Chief (Civil) as available at Annexure-8 finds, the Engineer-in-

Chief (Civil) on consideration of the entire story involving revision

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of scale of pay of the Petitioner from time to time, in last but one

paragraph has come to observe as follows:

"Had his pay been fixed at the right time, he could exercise change of option under ORSP Rules- 1985 and 1989 prior to cut off date i.e. after 22.09.99. Delayed pay fixation was a bar for Sri Mohapatra to exercise change of option. The situation so occurred was beyond his control for which he has no fault. Besides the services of Sri Mohapatra during the period in question remain unverified. Annual verification of service, sanction of increments and fixation of pay are incidental to the service of a Government Servant. As such the applicant should not have been deprived of the benefit of revised option. As the services of Sri Mohapatra was regularized at a belated stage there was no scope on his part to exercise option at the appropriate time. Change of option is occasioned due to confirm of retrospective service benefit arising out of regularization of back service at a later date. His case is coming under exceptional circumstances."

8. For the above view of the Engineer-in-Chief (Civil), this

Court finds, the Department having come to understand that there

has been revision in the scale of pay of the Petitioner at subsequent

stage and further keeping in view that the revision has been granted

retrospectively, has rightly observed that the Petitioner cannot be

found to be at fault for not exercising revised option at appropriate

time. This Court, accordingly finds, there has been right

consideration in recommending the case of the Petitioner in the

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matter of revised option vide Annexure-8. This Court here takes into

account the rejection of the case of the Petitioner on the ground that

the claim of the Petitioner does not bear merit under the exception

circumstance as defined at paragraph no.5 of the Finance

Department Office memorandum dated 22.09.1999. On examination

of the Finance Department Office memorandum dated 22.09.1999,

this Court finds, in paragraph no.5 therein the authority has passed

as follows:

"5. In order to prevent the misuse of the relaxation regarding change of option provided under different Revised Scales of Pay Rules and in supersession of all previous instructions on the subject, Government have been pleased to decide that henceforward change of option may be considered by the Finance Department in exceptional circumstances only. For example -

(i) Re-fixation of seniority / stepping up of pay/ antedating of increment at a later date,

(ii) sanction of E.B. with retrospective effect at a belated stage after the expiry of the stipulated time for the exercise of option,

(iii) decision of the Government with regard to promotion, grant of increment or any service benefits with retrospective effect, finalization of Court proceedings necessitating re-fixation of pay subsequent to the time prescribed for exercising option, will constitute exceptional circumstances.