Orissa High Court
Bijaya Kumar Beura vs State Of Orissa & Other on 21 June, 2021
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.9633 of 2013
An application challenging the order dated 25.02.2013 passed in O.A.
No.1573 of 2008
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Bijaya Kumar Beura # Petitioner
Versus
State of Orissa & other # Opposite Parties
For the petitioner - Miss Pami Rath
For the opposite parties - Mr. A.R. Dash
(Addl. Govt. Advocate)
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CORAM:
MR. S.K.MISHRA, J.
AND
MISS SAVITRI RATHO,J.
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Date of Hearing: 20.04.2021 and 21.06.2021, Date of Judgment - 21.06.2021
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S.K.Mishra, J. In this writ application, the sole petitioner assails the final order passed by
the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.913/1998 on
10.05.2007 rejecting his prayer by the opposite parties to grant him scale of pay of
Rs.1400-2300/- as that of Accountant of the District Sports office. The petitioner had
earlier approached the Tribunal by filing O.A. No.2334/1997, which has been
disposed of with certain observations and direction to the opposite parties to
consider his case. The observations made therein have been relied on by the
petitioner-applicant for grant of the relief he has prayed for in the O.A. in question.
2. The applicant joined Government service as Junior Clerk-cum-Typist
in the Tourism Information Bureau, Konark on 07.06.1973. In due course, he was
promoted to the post of Accountant and posted to the District Tourist office at
Sambalpur on 23.03.1979. At the time of filing of the original application before the
Tribunal, he was working as Accountant in the Department of Tourism, Sports and
Culture. The Department of Tourism was a part and parcel of the erst-while Home
(P.R.) Department till 23.11.1973. At that time, the Department of Cultural Affairs
was created and the Department was reorganized and renamed as the Department
of Tourism, Sports and Culture w.e.f. 10.06.1980. A separate department of
Tourism was created w.e.f. 02.01.1991. Again the Department was reconstituted as
Department of Tourism and Culture w.e.f. 30.12.1995. These different
organizations, namely, Tourism, Sports and Culture were under the administrative
control of separate Directors, but all of them function under one Secretary. Each
organization had district offices for which some separate staff has been sanctioned.
Initially, the Ministerial Officers of the District Tourist office constituted one
Accountant, and one Junior Clerk-cum-Typist. The District office was in-charge of
Tourist Officer, who besides being head of the office is also drawing and disbursing
officer. The district office relating to culture and sports organization do not have
ministerial staff and the most of ministerial staff required for those offices are being
provided by the respective Collectors.
The Culture and Sports Organization had no head office and no
separate officers were posted as in the case of Tourist Organization. It was only in
the Tourist Organization at the district level, which is being headed by a Tourist
Officer, who is a Class-II Gazette officer. The Tourist officer being the head of the
office is the drawing and disbursing officer. The post of Accountant, which has been
created by the Government on 14.08.1973, has been posted in difference offices.
The duty of the Accountant is to deal with cash book, office contingencies and
preparation of pay bills of the staff working in the Tourist Office. Besides the above,
his duty is to prepare T.A. bills and bills relating to the Tourist organization and as
such the Accountant of the District Tourist Office has been functioning as a full-
fledged Accountant discharging the duties of the Accountant of a regular office.
During the year, 1981 on the recommendation of the pay
Rationalisation Committee, the post of Accountant working in the District Tourist
office was re-designated as Junior Accountant. According to the applicant, there is
no post of Accountant or Senior Accountant in the district office and in absence of
such post re-designating the Accountant as Junior Accountant is arbitrary and
discretionary. It is contended that the re-designated Junior Accountant had no
promotion avenue in the district office. Thus, according to the applicant, this
situation should have been considered by the Government at the time of re-
designating the Accountant and there is no logic behind designating the existing
posts of Accountant as Junior Accountant especially when there is no difference in
the nature and volume of duties performed by the Accountant of the Tourist office
and Accountant working in other office of the Government. In the meanwhile, the
Sports Organization, which was a part and parcel of the Composite Department of
Tourism, Sports and Culture, Government in order No.720 dated 29.01.1986
(Annexure-2), created 13 posts of Accountants in the scale of pay of Rs.1005-
1830/- and there is no reasonable ground nor any logic behind the creation of post
of Accountant for the Sports Organization at a higher scale of pay as the nature and
duties of the Accountant of the Sports Organization was no way higher in nature
than the erstwhile Accountant of the Tourist Organization.
It is submitted that the officer in-charge of the Sports Organization was
never declared as Head of Office nor he was drawing and disbursing officer.
Therefore, the Accountant of the office of Sports Organization at the district level is
never entrusted with any onerous duty. The Tourist Officer is the drawing and
disbursing officer with regard to the staff placed under his administrative control and
is also the appointing authority with regard to certain section of Class-III and Class-
IV employees and the duties of the Accountant are more onerous than the accounts
of the Sports Officer under the Sports Organization. According to the applicant, the
very reason which weighed with the higher authority to create the post of
Accountant at a higher scale of pay for the Sports offices should have been applied
to the erstwhile Accountants of the Tourist office.
The applicant being aggrieved by such decision of the Government
has submitted a representation to the higher authority for consideration of his case
for grant him scale of pay admissible to the Accountant of the District Sports office
under the Sports Organization. As the Government did not consider his
representation, he approached the Tribunal in O.A. No.2334/1997. The Tribunal
vide order dated 24.11.1997 directed the Government to dispose of the
representation of the applicant within three months from the date of receipt of the
order.
The further case of the petitioner is that the Department of Tourism
and Culture to whom the representation of the applicant was addressed, was
satisfied that the claim of the applicant was genuine and accordingly sought for the
views of the Finance Department to accord approval to the proposal for giving
appropriate scale of pay to the applicant. But, the Finance Department advised the
Respondent No.1 to reject the representation of the applicant and accordingly his
representation was rejected vide order No.4613, dated 04.05.1998 i.e. Annexure-4
to the O.A. Hence, he approached Tribunal on the same ground.
3. The opposite parties-respondents appeared in the case and filed
counter affidavit. They claim that the responsibility assigned to the Accountant of
the Tourist office is considered less than those assigned to the Accountants in the
District Sports office. As a result of which, there is a difference in the scale of pay.
The claim of the applicant to get equal scale of pay with the Accountant or his
designation should be revised to that of the Accountant was of no merit. Their
further case is that in the matter of determination of scale of pay against any
particular post, the Finance Department is the appropriate authority to have the right
of final view, irrespective of the views taken by the Administrative Department. The
opposite parties though admit that the Administrative Department forwarded the
representation of the applicant to the Finance Department, ultimate view taken by
the Finance Department will have overriding the effect on the view of the
Administrative Department. Hence, the opposite parties averred that the application
of the applicant was rejected on the view of Finance Department and the allegation
of non-application of mind is incorrect. Hence, they prayed that the O.A. may be
dismissed.
4. Respondent no.3 filed separate counter refuting the allegations made
in the O.A. and his case is that on 29.01.1986, 13 posts of Accountant were created
for 13 districts Sports office in the scale of pay of Rs.1005-1830/- the corresponding
revised pay under ORSP Rules, 1989 is 1400-2300/-. On the other hand, the post of
Accountant for the Tourist Bunglow, Sambalpur was created on 07.04.1976 in the
scale of Rs.300-410/- which corresponds to U.D. Clerk scale in the District Office
and the same was revised to Rs.320-550/- under OSRP Rules, 1981, 840-1345/-,
under ORSP 1985 and 1200-2040 under ORSP 1989, under OSRP 1981 and the
post of U.D. Clerk was re-designated as Senior Clerk and the post of Accountant
was re-designated as Junior Accountant under ORSP Rules, 1981. Accordingly,
the Tourism Department had issued an office order to that effect on 18.08.1982.
Keeping in view the re-designation of Accountant, subsequently three posts of
Junior Accountant were created in the Tourist Office at Konark, Baripada and
Dhenkanal on 12.06.1991 in the scale of Rs.1200-2040/-. Thus, the post of
Accountant created on 07.04.1976 for Sambalpur Tourist Office Bunglow and three
posts of Junior Accountant on 12.06.1991 for the Tourist Office at Konark, Baripada
and Dhenkanal on 12.06.1991 in the scale of pay of Rs.1200-2040/-. But, when the
posts of Accountant were created for Dist. Sports Office on 29.01.1986 in the scale
of pay Rs.1005-1830/- the scale corresponds to the scale of Senior Assistant of
Heads of Department, Secretariat which is 1400-2300/- under ORSP 1989. The
work of Accountant prior to 1981 and that of the Junior Accountant (Accountants re-
designated as Junior Accountants with effect from 01.01. 1981) with effect from
01.01.1981 relates to sphere of activities which are confined to isolated Tourist
Bunglow or Tourist Office but not always to District Tourist Office. On the other
hand, the work and responsibility of the Accountant of District Sports Officers cover
the activities at the district level. The post of Accountant prior to 1981 or the post of
Junior Accountant with effect from 01.01.1981 was created in the scale
corresponding to Senior Clerk of the District Office. Keeping in view the nature of
duty, level of responsibility and work load, the posts of Accountant in the District
Sports office have been created at a higher scale which corresponds to the scale of
pay of Senior Clerk of the Head of the Department and Secretariat. Thus, according
to the Respondent No.3, when the post of Junior Accountant for the Tourist Office
and the Accountant for the District Sports Office have been created with a different
scale of pay, the Junior Accountant of the Tourist Office cannot claim the same
scale of pay as applicable to the Accountants of the District Sports Office.
It is further submitted that on 12.06.1991 the post of Junior Accountant
has been created in the scale of pay of Rs.1200-2040/- under the O.R.S.P. Rules,
1989 whereas the post of Accountant has been created for the District Sports office
on 29.01.1986 in the scale of Rs.1005-1930/- under ORSP Rules, 1985 with
corresponds to Rs.1400-2300/- under ORSP Rules, 1989. The difference scale of
pay has been prescribed taking into account the sphere of activities, overall work
load, level of responsibilities and all other related issues. Hence, according to the
respondent no.3, prayer of the applicant, merit no consideration.
5. The applicant has filed a rejoinder to the counter filed by the opposite
party-respondent nos. 1 to 3 refuting the pleas raised by them.
Taking into consideration the grounds taken in O.A. No.913/1998, the
Tribunal took into consideration the following undisputed facts:-
(i) In the year, 1981, on the recommendation of the Pay
Committee the Government re-designated the post of
Accountant working in the Tourist Office as Junior Accountant.
(ii) The Tourism Department in its counter stated that it forwarded
the representation of the applicant to the respondent no.2.
(iii) There is a noting in the file of Tourism department that the
duties and responsibilities of the Junior Accountant in the
Tourism Department are no way less than those of the
Accountants of the Sports and Culture Department.
(iv) The Finance Department did not agree with the
recommendation of the Tourism Department that the pay scale
allowed to the Accountants in the pre-revised scale of pay
Rules, 1974, revised scale of 1974, 1981, 1985 and 1989 are
higher than the pay scales allowed in favour of the
Accountant/UDC in those revised scale.
(v) The posts of Junior Accountant in the Tourist Office and the
Accountants for the District Sports Office have been created
with different scales of pay. However, taking into consideration
the noting of the Tourism Department and there is no plea that
the Junior Accountant of the Tourism Department are entrusted
with more work than that the Accountant of the Sports
Department has not been controverted, the Tribunal earlier
directed the respondent no.3 to reconsider the case of the
applicant in the light of observation made therein.
6. Pursuant to the order of the Tribunal, the matter was reconsidered by
the State, especially the Finance Department and it was rejected vide order dated
19.11.2008 i.e. Annexure-9 to the O.A. The applicant-petitioner thereafter filed O.A.
No.1573/2008 challenging the said rejection. The grounds of challenge were
almost same as in the earlier original application. The matter was heard by the
Tribunal on 13.02.2013 and the application was rejected on 25.02.2013. The
Tribunal in the 2nd O.A. held that such a plea is not a reason to direct the State
functionary to bring parity in the scale of pay of Junior Accountant of the Tourist
Bunglows with that of the Accountant of the District Sports office. The Tribunal
relied upon the ratio decided by the Hon'ble Supreme Court in the cases of Union
of India and others vs. Dinesoan K.K., AIR 2008 S.C. 1026, State of Haryana
and Another vs. Charanjit Singh and others, 2006 (9) SCC 321 and State of
Haryana and others vs. Jasmer Singh and others, 1996 (11) SCC 77.
Therefore, the Tribunal rejected the subsequent application to give a specific
direction to the opposite party nos. 2 and 3 to equal pay of the petitioner with that
of the Accountant of the Sports Department.
7. Assailing the findings and the observations made by the Tribunal,
while disposing of the O.A., Miss. Pami Rath, learned counsel appearing for the
sole petitioner would argue that once the Tourism Department has noted and
recommended that the functions and duties of the Junior Accountant of the Tourist
Office, Department is no way less than duties and responsibilities of the
Accountant of the District Sports Office, it was improper and arbitrary on the part of
the Finance Department to reject his claim and, therefore, the Tribunal committed
error on record by not allowing the application of the petitioner. The learned
counsel for the petitioner would further argue that once the Tribunal had given
certain observations and directed the opposite parties to consider the case of the
petitioner on that basis, it was not proper on the part of the Tribunal to take a
different view in the subsequent review application. Therefore, it was contended by
the learned counsel for the petitioner that the petition should be allowed and the
prayer of equity in the pay scale of the petitioner as granted to the post of Junior
Accountant in the Tourism Department should be equated to that pay of the
Accountant of the Sports Office.
Sri A.R. Dash, learned Addl. Government Advocate appearing for the
State would submit that pay fixation is a complex activity requiring expertise in the
field of finance, account and such orders of the State Government on the pay
committee recommendation should not be interfered with lightly either by the
Tribunal or the High Court by exercising its writ jurisdiction. He would also argue
that equal pay for equal work is not an abstract doctrine and can be enforced in a
court of law. But, it can be enforced in very rare cases. In the earlier application, the
Tribunal did not pass a positive order but directed to consider the case of the
applicant. So, it was within the realm of the executive to consider the case and take
a decision.
8. Having given anxious thought to the entire matter, we take note of the
case of Union of India and others vs. Dinesoan K.K., (supra) and come to the
conclusion that the equation of post and pay structure is a complex matter and
generally left to the executive bodies, pay commission etc. As has been held in that
case, a carefully evolved pay structure ought not to be disturbed by the Court as it
may upset the balance and cause avoidable ripples in other cadres as well. We also
take note of the observations of the Hon'ble Supreme Court in the case of State of
Haryana and Another vs. Charanjit Singh and others (supra) that doctrine of
equal pay for equal work is not an abstract doctrine and is capable of being
enforced in a court of law, but the same can be done in specific cases. We also take
note of the case of Orissa University of Agriculture and Technology and
another vs. Manoj Kumar Mohanty, (2003) 5 SCC 188 that the responsibility of
equalizing scale of pay should be left to the discretion of the executive to take a
decision in the matter. In such case, the Court should be slow in exercise of its
jurisdiction of judicial review.
9. Moreover, having considered the entire facts of the case, we are of
the opinion that in this case, the Finance Department considered the sphere of
activities, workload, level of responsibility and other related issues of a Junior
Accountant of the District Tourist office and Accountant of a District Sports office
and arrived at the conclusion. Moreover, Tourism Department i.e. Tourism and
Culture Affairs (Tourism) had only the opportunity and assess the responsibilities of
the Junior Accountant or other Accountant of the Tourist Department. It does not
appear to have any verifiable data regarding the responsibility and staff work load
etc., of the Accountant of the other Department i.e. Sports Department.
10. We are of the considered opinion that in such a case where the
Tourism Department takes a view and makes a noting and thereby makes
recommendation to the Finance Department, it has the opportunity of examining its
employees and their responsibility without having any assessment of the
responsibility of any other Department. The matter would have been different had
the Tourism Department considered the responsibilities and duties etc. of other
department employees, made a comparison and then recommended as it did.
However, in this case, the evidences do not show that the Tourism Department did
in fact assess the responsibilities of the Junior Accountant of its department with
that the Accountant of the Sports Department. At least, there is no material to show
that there has been such a comparison of duties and responsibilities and staff work
load. So, it was well within the discretion of the Finance Department to arrive at a
different conclusion and we do not find arbitrariness in such a decision taken by the
Finance Department. So, on that ground, the application of the applicant has rightly
been rejected.
11. We are of the opinion that the issuance of writ of certiorari is not a
matter of course. The Court has the power to refuse the writ if it is satisfied that
there is no failure of justice. The writ jurisdiction being discretionary, it is not issued
merely because it is lawful to do so. Where the errors of law cannot be said to be
errors apparent on the face of the record, the High Court should not interfere in the
matter of any final order passed by the Tribunal as if it is sitting as a court of appeal.
But, in a case of any error of jurisdiction or the excise of jurisdiction with material
impropriety, the Court should interfere with the final order of the Tribunal exercising
certiorari jurisdiction. Similarly, in a case where the Tribunal has come to the
conclusion without considering materials on record like documentary evidence, in
drawing inference or any considered documents in evidence, the writ of certiorari
should be issued. It is not the case of the petitioner that in this case there has been
any jurisdictional error on the part of the Tribunal in any manner. It is also not
demonstrated that the Tribunal ignored any admissible evidences while arriving at
the final conclusions.
12. Hence, there is no merit in the writ petition and the orders passed by
the Tribunal do not suffer from any patent and perverse findings requiring
interference of this Court.
The writ application is dismissed. There shall be no order as to costs.
As the restrictions due to resurgence of COVID-19 are continuing, the
learned counsel for the parties may utilize a printout of this judgment available in
the High Court's website, at par with certified copy, subject to attestation by Miss
Pami Rath, Advocate, in the manner prescribed, vide Court's Notice No.4587, dated
25th March, 2020 as modified by Court's Notice No.4798 dated 15.04.2021.
1.111111..
S.K.Mishra, J.
Savitri Ratho,J. I agree.
1.111111..
Savitri Ratho,J.
Orissa High Court: Cuttack
st
Dated, the 21 June, 2021/PCD
