Orissa High Court
The Chief Secretary To Government vs Ashok Kumar Tripathy And Another on 23 November, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT PETITION (CIVIL) No.22010 OF 2016
(An application under Articles 226 & 227 of the Constitution of India.)
The Chief Secretary to Government
of Odisha and others ...... Petitioners
Versus
Ashok Kumar Tripathy and another ....... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr.M.K.Khuntia, A.G.A.
For Opposite Parties : Mr.S.P.Mohanty, Advocate
(For O.P.No.1)
CORAM : THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
rd
23 November, 2021
B.P. Routray,J.
1. The State-Respondents before the Odisha Administrative Tribunal
(in short 'Tribunal') have come up in the present writ petition in
challenging order dated 5th February, 2015 passed in O.A. No.300 of
2012.
2. The present Opposite Party No.1 was the applicant before the
learned Tribunal. He filed the O.A. with the prayer as follows:
"i. The Hon'ble Tribunal may be pleased to direct the
Respondents to give the applicant benefit of
protection of pay by taking into account his last
drawn in DRDA under Panchayatraj Department and
to revise his pay accordingly.
ii. The Hon'ble Tribunal may further be pleased to
direct the Respondents to count his previous services
in DRDA from 19.09.1992 to 05.09.1997 towards
qualifying service for pension and pensionary
benefits as per law.
iii. The Hon'ble Tribunal may further be pleased to
direct the Respondents to sanction and pay the
differential amount on the event of revision of his pay
taking into account his last pay drawn in the DRDA.
iv. The Hon'ble Tribunal may further be pleased to
direct the Respondents to give all other financial and
consequential service benefits on the event of
counting his previous 5 years service in the DRDA
under the Panachayatraj Department for all
purposes."
3. The case of the applicant was that he is presently working as
Junior Engineer (Civil) in (R & B) Division, Parlakhemundi under the
control of Engineer-in-Chief, Odisha. He was initially appointed as J.E.
by the Panchayatraj Department on 4th November, 1992 and joined on
19th November, 1992. He continued as such till 7th November, 1997 and
joined as J.E. (Civil) in Works Department under the control of
E.I.C.(Civil), Odisha pursuant to his selection as such. He prayed for
protection of his pay as per the last pay drawn under Panchayatraj
Department and upon transmission of his service book, his prayer to
protect his pay by counting the previous service period from 19th
November, 1992 to 7th November, 1997 was rejected by the
E.I.C.(Civil), Odisha by order dated 7th April, 2006. Upon rejection of
his prayer for protection of pay, he submitted a representation to the
authority concerned for reconsideration of the same. Since nobody pays
any heed to the same, he ultimately approached the learned Tribunal
with the prayer afore-stated. The specific pleading of the applicant to this
effect made at para 6.3 of the Original Application is re-produced below:
"6.3. That, it is respectfully divulged that after receipt of
the Service Book and L.P.C. from the D.R.D.A, Rayagada,
the Respondents did not count his past services in the
organization for protection of his pay as per Rule.
Therefore, the applicant had approached his immediate
authorities for doing the needful to give him the financial
benefits taking into account his previous 5 years of services
in the Panchayatraj Department. But unfortunately the
authorities did not pay any heed to his requests and ipso
facto the applicant has been constrained to submit a
representation to the E.I.C.-Cum-Secretary to Govt., Works
Department praying therein for giving him the protection of
pay by taking into account his previous service from
19.09.1992 to 05.09.1997 in the D.R.D.A. under the
Panchayatraj Department vide his letter dtd.15.05.2006
under Annexure-7. However, the said representation was
rejected by the Respondents mechanically and without
application of mind vide order dtd.04.04.2006 under
Annexure-8. It seems this order is a non-speaking and bald
order which has been passed without examining the relevant
Rules and procedures of the Govt."
4. The State authorities filed their counter affidavit before the
learned Tribunal denying the claim of the applicant that in view of
Finance Department Office Memorandum No.35361 dated 19th June,
2001 and 39986 dated 26th August, 2002, his case was rejected. The
specific averments taken in the counter affidavit is as follows:
"On examination of the representation dt.15.12.97
and reminder dt.17.3.06, his case was rejected vide E.I.C.
(Civil) letter No.14777 dt.7.4.06 (Annexure-8 of the O.A.)
in terms of Finance Department O.M. No.35361 dt.19.6.01
and No.39986 dt.26.8.02. xx .... xx .. xx .. It is not known
to the O/O the Respondent No.3 if the applicant had
submitted any representation to the Respondent-1 & 2. The
present position of such representation also not known to
the Respondent No.3."
5. The learned Tribunal upon adjudication directed to count the
previous service of the applicant from 19th November, 2019 to 5th
November, 1997 in D.R.D.A. towards qualifying service and further to
extend the benefits of protection of pay taking into account the last pay
drawn by him in Panchayatraj Department and accordingly to revise the
pay along with disbursement of differential amount.
While directing so, the learned Tribunal did not discuss anything
on rejection of the prayer of the applicant by the authorities concerned
earlier.
6. As mentioned above, it is clear that the claim of the present
O.P.No.1 was rejected by Engineer-in-Chief (Civil), Odisha (present
Petitioner No.2 and Respondent No.3 before the learned Tribunal). The
applicant (O.P.No.1) did not question such rejection order dated 7th
April, 2006 before the learned Tribunal though it has been pleaded in
clear terms about such rejection by the authority. The learned Tribunal in
the impugned order has though mentioned in paragraph-3 about that
rejection order passed by the authority, but did not make any further
discussion on the same and proceeded with the matter to examine the
prayer of the applicant on merit. The learned Tribunal by referring to
different circulars and Government Orders issued from time to time for
grant of pay protection, has directed in favour of the applicant by holding
that the office memorandum dated 26th August 2002 is not applicable to
the case of the applicant.
7. Keeping in view the nature of pleadings, the question arises that,
whether the prayer of the applicant to grant him protection of pay is
maintainable without any challenge to the rejection order dated 7th April,
2006.
8. Normally the petitioner would have come to the court challenging
order dated 7th April, 2006 had he been aggrieved with the same. But he
did not and remained quiet for a long period till 2012. After lapse of six
years he approached the tribunal for grant of the relief without
challenging the rejection order of the authority. It is not the case of the
applicant that he was unaware of such rejection order. Rather the said
order of rejection was annexed at Annexure-8 to the O.A. and both
parties have their specific pleadings on the same. Undoubtedly the
rejection order dated 7th April, 2006 stands on the way to grant the relief
in favour of the applicant. Thus, it was incumbent upon the applicant to
challenge that rejection order before praying for relief of pay protection.
9. Under such circumstances in our considered opinion, the prayer of
the applicant to grant relief of protection of pay is not maintainable in
absence of challenge to the rejection order dated 7th April, 2006. The
learned Tribunal has thus, committed error in granting relief to Opposite
Party No.1 without giving any finding on the rejection order.
10. For the reasons stated above, the writ petition is allowed and the
impugned order dated 5th February, 2015 is set aside.
(B.P. Routray)
Judge
(Dr. S. Muralidhar)
Chief Justice
//C.R.Biswal, Secy.//
