Orissa High Court

State Of Odisha & Ors vs Rabinarayan Sahoo & Ors on 14 December, 2021

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                               W.P.(C) No.4229 of 2017

            State of Odisha & Ors.                   ....           Petitioner(s)
                                                         Mr. D.R. Mohapatra,
                                     Standing Counsel for the S. & M.E. Deptt.


                                          -versus-


            Rabinarayan Sahoo & Ors.                 ....     Opposite Party(s)
                                                              Mr. K.C. Sahu,
                                                        Advocate for the O.P.1

                          CORAM:
                          JUSTICE C.R. DASH
                          JUSTICE BISWANATH RATH
                                    ORDER

14.12.2021 Order No.

03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).

2. Heard Mr. D.R. Mohapatra, learned Standing Counsel for the S. & M.E. Deptt.-Petitioners and Mr. K.C. Sahu, learned counsel for the Opposite Party No.1.

3. The order dated 26.07.2016 passed by the learned State Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No.710 of 2015 has been challenged, as the O.A. filed by the Opposite Party No.1 was allowed.

4. It is stated at the Bar that the issue involved in the present writ petition is covered by the judgment of this Court dated 13.04.2017 passed in W.P.(C) No.1043 of 2017 and further

// 2 //

clarificatory order dated 05.02.2019 passed in Misc. Case No.693 of 2018 arising out of the W.P.(C) No.10942 of 2017.

5. For better appreciation of facts and law, relevant portion of the said judgment dated 13.04.2017 passed in W.P.(C) No.1043 of 2017 is quoted below:-

"4. We have heard learned counsel for the parties and perused the materials available on record.

5. The fact which is not in dispute that the opposite party no.1 was working as Assistant Teacher having untrained Intermediate Teacher. The State of Odisha has come out with notification dated 5.10.1989 by enforcing revision of pay scale. The Education Department of the Government of Odisha has passed resolution dated 28.6.1991 as contained in Resolution No.30060 which was in consequence upon the ORSP Rules, 1989 extending benefit of revision of pay scale to the employees posted in aided non-Government Educational institutions w.e.f. 1.5.1989. In the said resolution, the Untrained Intermediate / Trained Matriculate Teacher has been show in the same category having pay scale of Rs.840-1240 which has been revised to Rs.1080-1800, and accordingly pay of the opposite party no.1 has been fixed in the scale of pay of Rs.1080-1800. Government subsequently came out with corrigendum as contained in Order No.40784 dated 27.81992 wherein Assistant Teacher having Untrained Intermediate and Trained Matric teacher have been placed in two categories of scale of pay i.e. Untrained Intermediate at the scale of pay of Rs.975-1660 and Trained Matric teacher at the scale of pay of Rs.1080- 1800, but the pay scale as provided under corrigendum dated 27.8.1992 has not been carried out with respect to the case of the opposite party no.1 and he was allowed to get his salary on the basis of the pre-corrigendum scale of pay of Rs.1080-1800 and on that scale of pay he ultimately has been superannuated from service w.e.f. 31.8.2012.

When the fixation of pension paper of the opposite party no.1 was sent for sanction, the Controller of Accounts, Bhubaneswar has raised objection regarding scale of pay and fixation of pension and accordingly directed to recover the excess amount alleged to have been paid in his favour, which has been challenged by him before the Tribunal and the Tribunal has quashed the communication dated 19.10.2013 under Annexure-3 on the ground that there cannot be any recovery on the basis of the judgment pronounced by the Hon'ble Apex Court in

// 3 //

the case of Chandi Prasad Uniyal and other -vs- State of Uttarakhand in Civil Appeal No.5899 of 2012 and also directed the authorities to fix pension in the light of the pay scale which he was already getting on the date of retirement, which is impugned in the instant writ petition.

6. There is no dispute in the legal proposition that according to the entitlement revision of pay is to be made to an employee and he can get pension on the basis of his entitlement only. In the given facts of this case, the opposite party no.1 who was working as Assistant Teacher having Untrained Intermediate have been given benefit of ORSP Rules, 1989 and at that time pay scale of untrained Intermediate and Trained Matriculate have been directed to be given same pay scale of pay of Rs.1080-1800 and accordingly pay scale of the Opposite party no.1 has been fixed in the revised pay scale of Rs.1080-1800 and he was drawing his scale of pay.

The issue of higher scale of pay of Rs.1080-1800 has also been approved by this Court in O.J.C. No.12807 of 2001, but subsequently corrigendum dated 27.8.1992 has come wherein Untrained Intermediate teacher has been directed to get revised pay scale of Rs.975-1660/- instead of Rs.1080-1800/- which was the scale of pay of Trained Matric teacher but the corrigendum dated 27.8.1992 has not been acted upon so far it relates to the opposite party no.1 and he was allowed to get revised scale of pay of Rs.1080-1800 at the time of superannuation.

7. On the basis of the facts stated herein above, we find that the opposite party no.1 has not made any misrepresentation and it is the Government who, at the initial stage, has fixed pay scale of the opposite party no.1 on the basis of the resolution dated 28.6.1991 but subsequently corrigendum dated 27.8.1992 has not been given effect so far he is concerned.

We are of the considered view that since there is no misrepresentation on the part of the opposite party no.1 and he has already retired from service, hence the judgment rendered in the case of State of Punjab and others etc. Vs. Rafique Mashih (While Washer etc.) (supra) will squarely covered his case.

So far it relates to the contention of the learned counsel for the Petitioner-State that in the judgment rendered by the Hon'ble Apex Court in the case of High Court of Punjab & Haryana & others -vs- Jagdev Singh (supra) passed in Civil Appeal No.3500 of 2006 that in case of undertaking having been furnished by an employee, the excess amount will be recovered but that judgment will not be applicable in the facts and circumstances of the case because of Rule 8 of the ORSP Rules, 1989 which is being quoted herein below;

// 4 //

"Where, in the course of pay fixation under these rules, any amount drawn or received as pay by any Government servant under any rule is found to be in excess of the amount payable to him under these rules, the excess amount so drawn or received, shall not be recoverable from such Government servant and shall be deemed to have been waived."

8. We, on perusal of the Rule 8 of the ORSP Rules, 1989, have found that in course of fixation of pay if any amount drawn or received as pay by any Government servant under any rule is found to be in excess of the amount payable to him under these rules, the excess amount so drawn or received, shall not be recoverable from such Government servant and shall be deemed to have been waived. In view of the specific provision provided under the ORSP Rules, 1989 the judgment rendered in Civil Appeal No.3500 dated 2006 will not be applicable.

Learned counsel representing the State of Orissa has submitted that in the ORSP Rules, 2008, specific provision has been made to recover the excess amount received and in view thereof, order of recovery cannot be said to be illegal, but we are not in agreement with such submission reason being that the opposite party no.1 has been given benefit of revision of pay scale on the basis of ORSP Rules, 1989, hence provision as contained in Rule 8 of ORSP Rules, 1989 will be applicable and not ORSP Rules, 2008, since the revision in pay scale by virtue of ORSP Rules, 2008 is consequence of revision of pay scale which has been granted in favour of the opposite party no.1 on the basis of the ORSP Rules, 1989. Furthermore, provision of the ORSP Rules, 2008 cannot be given retrospective application when other Rule was applicable on the date when other Rule was applicable on the date when pay of the opposite party no.1 has been fixed.

9. We, after taking into consideration this aspect of the matter, are of the conscious view that the Tribunal has rightly passed the order restraining the authorities not to recover excess amount, hence we are not inclined to interfere with the same.

10. Further, part of the order by which the Tribunal has directed to fix pension on the basis of the pay scale which the petitioner was getting at the time of his superannuation, we are not agreement with the finding reason being that the Petitioner was entitled to get pension at the ORSP Rules, 1989 which has been given vide resolution dated 28.6.1991 and thereafter the said resolution has been modified vide corrigendum dated 27.8.1992 by which pay scale of the opposite party no.1 having Untrained Intermediate has been reduced from

// 5 //

Rs.1080-1800 to Rs.975-1660 which is not in dispute, hence scale of the opposite party no.1 be fixed at Rs.975- 1660/- and it is settled that any government servant after retirement cannot be allowed get salary which he is not entitled to get. However, the opposite party no.1 has been given higher pay scale as has been discussed above, but that does not mean right has been conferred upon it. This is for the reason that on the wrong notion right cannot be accrued to the party.

Further we, on adopting the principle that illegality cannot be allowed to be perpetuated, are of the conscious view that the petitioner will be entitled to get pension on the basis of his actual entitlement. In view thereof, part of the order directing to fix pension on the basis of the pay scale the opposite party no.1 was getting at the time of superannuation, does not sustainable in the eye of law and accordingly at the time of superannuation, that part of the order is quashed, in consequence, the authorities are directed to proceed in the matter for fixation of final pension of the opposite party no.1 since we have told that the opposite party no.1 was getting provisional pension. The entire exercise shall be completed within 10 weeks from the date of receipt of copy of this order

11. In the result, the writ application is partly allowed."

The order dated 05.02.2019 passed in Misc. Case No.693 of 2018 arising out of W.P.(C) No.10942 of 2017 is quoted below:-

"Misc. Case No.693 of 2018 This application has been filed by the applicant-opp. Party no.1 to recall the order dated 11.07.2017 passed in W.P.(C) No.10942 of 2017.

In course of argument, Mr. B.S. Tripathy, learned counsel for the applicant-opposite party No.1 submitted that since the applicant-opp. Party no.1 is an untrained teacher, hence the judgment dated 13.04.2017 passed in W.P.(C) No.1043 of 2017 is applicable to untrained teachers and not applicable to trained teachers.

In that view of the matter, it is open to the learned counsel for the applicant in other pending cases to argue the matters on merit since judgment dated 13.04.2017 passed in W.P.(C) No.1043 of 2017 is not applicable to the trained teachers.

Accordingly, the Misc. Case is disposed of."

6. Hearing the learned counsel for the respective side and on perusal of the orders quoted hereinabove, we find that the orders

// 6 //

quoted hereinabove are squarely applicable to the case at hand. We, accordingly, dispose of the writ petition in the light of the above.

7. In view of the aforesaid order, this Court directs, this order be complied with within a period of three months from the date of receipt of a certified copy of this order.