Orissa High Court
State Of Odisha vs Ashokarani Mishra on 24 June, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21772 of 2019
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Ashokarani Mishra .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P.(C) No.26373 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Madhusmita Swain .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P.(C) No.26384 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Basanti Toppo .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P. (C) No.26385 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Gitarani Nayak .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P. (C) No.26387 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Menaka Swain .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P. (C) No.26388 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Nirupama Pal .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
Page 1 of 7
// 2 //
W.P. (C) No.26389 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Mamata Manjari Satapathy .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P. (C) No.26421 of 2017
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Sitabati Kujur .... Opposite Party
Mr. Surya Narayan Patnaik, Advocate
W.P. (C) No.2033 of 2021
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Anupama Naik .... Opposite Party
Mr. Prakash Kumar Rout, Advocate
W.P. (C) No.2286 of 2021
State of Odisha .... Petitioner
Mr. L. Samantaray, A.G.A.
-Versus-
Mamata Dash .... Opposite Party
Mr. Prakash Kumar Rout, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE S.K. PANIGRAHI
ORDER
Order No. 24.06.2021
09. 1. This matter is taken up by video conferencing mode.
// 3 //
2. The present writ petitions have been filed challenging the
order dated 7th February, 2019 passed by the Odisha
Administrative Tribunal, Bhubaneswar (OAT) in a series of
applications, where issues involved are identical in nature.
Accordingly, all these writ petitions filed by the State of Odisha
against the said orders are disposed of by this common order.
3. The common issue in all these writ petitions is whether the
Opposite Parties, who are Staff Nurses, should get their revised
pay scale, in terms of the Government Resolution issued on 26th
June, 2013 prospectively, i.e. three years after their
regularization or retrospectively, i.e. from the date of their
regularization?
4. The OAT has answered the question in favour of the nurses
and held that they would be entitled to the revised pay scale from
the respective dates of their regularization. Consequently, the
OAT quashed the clarification dated 17th May, 2015 issued by
the Health & Family Welfare Department and an order dated 31st
May, 2014 refixing the revised pay scale of the Opposite Parties
as well as the letter dated 12th September, 2014 issued by the
CDMO of various districts directing recovery of the excess
payments. The OAT issued a positive direction to the Petitioner
to pay the Opposite Parties the revised scale of pay in terms of
the earlier order dated 1st March, 2014.
5. The background facts are that, each of the Opposite Parties
was appointed as Staff Nurse on contractual basis. After
// 4 //
completion of the contractual period of engagement, each of
them was regularized in service in the scale of pay of Rs.5200-
20,200/- with a Grade Pay of Rs.2800/-.
6. Since they were not getting the salary component at par with
their counterpart Staff Nurses in the Govt. of India, the Opposite
Parties represented to the Petitioner. The matter of discrepancy
in fixation of their salary was referred to the Anomaly
Committee. After taking note of a comparative study of the entry
level qualifications, service conditions, and the scale of pay in
various states, the Anomaly Committee recommended upward
revision of the pay scale and sent its proposal to the Petitioner
State.
7. Acting on the said recommendation, in exercise of the power
under Rule 9 of the Odisha Revision of Scale of Pay Rules, 2008
(ORSP Rules), the Petitioner restructured the pay scale for its
Staff Nurses, but mandated that the revised pay scale would be
payable on their completing three years of service in the regular
scale of pay. The resolution dated 26th June, 2013 was issued to
the above effect.
8. The question that then arose was whether the revised scale of
pay would become payable only after completion of 3 years as
regular Staff Nurse or would become payable from the date
when the regularization in fact took place? Initially, the CDMOs
understood the above resolution to mean that the revised pay
scale would become available to the regular Nurses
// 5 //
retrospectively from the date of their regularization. However,
within a year on 17th May, 2014 the Health and Family Welfare
Department issued a clarification stating that the revised pay
scale would not have retrospective effect and that the resolution
should be implemented from the date of its publication. Acting
on this, the CDMOs issued fresh orders modifying the earlier
instructions on the revision of the scale of pay, and across the
board stating that it would be applicable only from 26th June,
2013. A further direction was issued on 31st May, 2014 that the
excess dues already paid should be recovered from the salary of
the Opposite Parties or they could opt to deposit the entire excess
amount in one instalment.
9. This was then challenged before the OAT by the Opposite
Parties by filing their respective applications. In the impugned
order the OAT has noticed that there was nothing in the
resolution dated 26th June, 2013 indicating that the revised pay
would take effect only prospectively. Accordingly, the OAT
proceeded to quash the subsequent clarification to that effect
issued by the Petitioner.
10. As regards recovery of the excess pay, since each of the
Opposite Parties was a Group-C staff, the OAT was of the view
that the excess payment, if at all, could not be recovered on the
strength of the judgment of the Supreme Court in State of
Punjab v. Rafiq Masih (White Washer) 2015 (4) SCC 334.
11. This Court heard the submissions of Mr. L. Samantaray,
learned Addl. Govt. Advocate for the State and Mr. Surya
// 6 //
Narayan Patnaik and Mr. Prakash Kumar Rout, learned counsel
for the Opposite Parties.
12. Once the Anomaly Committee recommended removal of
anomalies and recommended the revision of the pay scale of
regular Staff Nurses, clearly the revised pay scale would become
applicable from the date of the regularization itself. The
recommendation of the Anomaly Committee was not to the
effect that the revised pay scale should be made available
prospectively as and when it was notified by the Petitioner
Government. That being the position, when the notification
dated 26th June, 2013 was issued, the rider inserted by the
Petitioner that it would become payable on completion of 3 years
in the regular pay scale, was unwarranted. That did not reflect
the true intention of the Anomaly Committee.
13. A parallel could be drawn with any other pay scale revision.
For e.g., the National Pay Commission's recommendations.
There too, the discrepancies are sought to be removed by
referring the matters to the Anomaly Committee, and whenever
such Anomaly Committee clarifies the issue and recommends re-
fixing the pay scale, that is given effect to from the date when
the recommendation of the Pay Commission became effective.
In other words, the operation of the revised pay scale would not
be postponed to different dates, unless expressly stated in the
notification for reasons to be given.
14. In the present case there was no occasion to postpone the
applicability of the revised pay scales to a later date. The original
// 7 //
Government Resolution issued on 26th June, 2013 was not
intended to make the revised pay scales applicable only from the
date of such resolution.
15. Further, since the Opposite Parties are in Group-C posts, the
decision in the case of Rafiq Masih (supra) would apply and no
recovery of any alleged excess payment can be made.
16. Therefore, no grounds have been made out for interference
with the impugned order of the OAT. The writ petitions are
dismissed, but in the circumstances with no orders as to costs.
(Dr. S. Muralidhar)
Chief Justice
(S.K. Panigrahi)
Judge
S.K. Parida
