Orissa High Court
Sananda Sahu & Ors vs State Of Odisha & Ors. .... Opposite ... on 8 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18039 of 2022
Sananda Sahu & Ors. .... Petitioners
Dr. J.K. Lenka, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. S. Jena, AGA
Mr. A. Mishra, Advocate
(Opp. Party No. 2)
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
08.01.2024
Order No
08. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Dr. J.K. Lenka, learned counsel for the Petitioners and Mr.
A. Mishra, learned counsel appearing for the University-Opp. Party
No. 2.
3. The present writ petition has been filed inter alia with the
following prayer:-
"The Petitioners, therefore, most humbly pray
that your Lordships would be graciously pleased to issue
a Rule Nisi calling upon the Opp. Parties to show cause
as to why the impugned orders in para-45 of Syndicate
decision dt.30.06.2022 at Annexure-3 for re-fixation and
recovery order of Registrar dt.12.07.2022 at Annexure-4
should not be quashed being illegal, arbitrary and
discriminatory and denial of equal opportunity being
violative of Articles-14 and 16 of the Constitution of
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India because petitioners counter parts are getting full
salary from 1.4.1994 and the petitioners are similarly
placed with them;
And hold/declare that notional fixation from 1.4.94 and
actual payment made on the basis of said notional
fixation from 30.08.99 is legal and valid and direct the
Opp. Parties to implement the 7th Pay Commission from
1.1.2016 with all consequential & service benefits;
And if the Opp. Parties fails to show cause or sufficient
cause, the rule be made absolute;
And issue any other order/direction which would afford
complete relief to the petitioners in the facts and
circumstances of the case;
And for this act of kindness the petitioners as in duty
bound shall ever pray."
4. It is the case of the Petitioners that pursuant to the order passed
by this Court on 03.09.2013 in OJC NO. 410 of 2000 under
Annexure-1, Govt.-Opp. Party No. 1 while enhancing the grant to
the University, held the Petitioners entitled to get the scale of pay of
Rs. 9,300/- to Rs. 34,100/- with grade of Rs. 4,600/- and up to date
D.A. i.e.119% since July, 2015. Thereafter, the University vide
order office order dtd.16.11.2015 under Annexure-5 series fixed the
pay of the Petitioners as due and admissible as on 03.09.2013.
Subsequently, University passed a further order on 30.03.2016
under Annexure-5 series by fixing the pay of the Petitioner in
question in supersession of order dtd.16.11.2015 and extending the
benefit of pay scale on notional basis w.e.f.01.04.1994.
4.1. It is contended that subsequently Petitioners again approached
this Court in W.P.(C) No. 11200 of 2016 seeking a direction on the
University to pay the arrear salary w.e.f.01.04.1994 to 02.09.2013.
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This Court vide its Judgment dtd.28.06.2018 under Annexure-2
while disposing the writ petition issued the following direction:-
"28. It is prayed in the writ petition to sanction and release
arrear pay with all allowances and further prayer to declare
the petitioners are entitled to retiral benefits if in the meantime
they have retired. Nothing is made in the prayer for which
period of arrear salary is asked for, but submission is made to
allow same for the period from01.04.1994 to 02.09.2013. It is
already observed in the aforesaid para that from 30.08.1999
the University have declared them as employees of the
University and same fact has not been transverse by the
opposite parties. So, there is no any impediment to declare that
the petitioners are employees of the University since
30.08.1999. There is already discussion made above that the
block grant has been already made from 1994-1995 to 1998-
1999. From the aforesaid discussion, it appears that block
grant has been directed to be enhanced to meet the salary cost
of the petitioners. Hence the petitioners being treated equally
with other teachers and non-teaching staff as their
counterparts in other Government and Aided Colleges, they
are entitled to similar salary cost which would be made by way
of block grant to be enhanced and available from 30.08.1999
till 2013 and the O.Ps. are directed to make payment as such
to the petitioners within four months. Since they are employees
of the University, the normal rule of superannuation as per
Rules of Sambalpur University and retiral benefits thereunder
would apply."
4.2. It is contended that pursuant to the order passed by this Court
under Annexure-2, University extended the benefit by treating the
Petitioners to be employees of the University w.e.f.30.08.1999 vide
order dtd.16.01.2020 under Annexure-D to the counter and held the
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Petitioners entitled to get the benefit of regular salary and arrear
salary w.e.f.30.08.1999 to 02.09.2013.
4.3. Dr. Lenka contended that Petitioners, though were extended
with the benefit of regular scale of pay w.e.f.30.08.1999 and
notionally w.e.f.01.04.1994 with due fixation of their salary in the
appropriate scale of pay with Grade Pay, but basing on the
impugned decision of the Syndicate taken on dtd.30.06.2022 under
Annexure-3, pay of the Petitioners were revised with due approval
of the Vice Chancellor on 07.07.2022. Basing on such re-fixation of
the pay of the Petitioners so approved by the Vice-Chancellor, Opp.
Party No. 2 passed an office order on dtd.12.07.2022 under
Annexure-4 directing therein that excess payment made in favour of
the Petitioners, if any be recovered. It is contended that pursuant to
the decision taken by the Syndicate under Annexure-3, the pay of
the Petitioners were re-fixed on 07.07.2022. It is contended that the
pay fixed in terms of the decision of the Syndicate under Annexure-
3 is not the pay fixed and allowed vide order dtd.30.03.2016, which
was fixed in terms of the order passed by this Court under
Annexure-1 and subsequent benefit extended vide order passed on
16.01.2020 under Annexure-D, which was in terms of the order of
this Court under Annexure-2.
4.4. It is contended that the University suo moto basing on the
decision taken by the Syndicate under Annexure-3, re-fixed the pay
of the Petitioners, which is not in accordance with the order passed
under Annexure-1 & 2 and the compliance made by the University
with issuance of the order under Annexure-5 series as well as
Annexure-D to the counter. It is accordingly contended that Opp.
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Party No. 2 be directed to continue with the pay fixed in terms of
the order passed by this Court under Annexure-1 & 2 and extended
vide order dtd.30.03.2016 under Anenxure-5 series and order
dt.16.01.2020 under Annexure-D to the counter.
5. Mr. A. Mishra, learned counsel appearing for the University on
the other hand contended that even though the order passed by this
Court under Annexure-1 & 2 was complied with, with issuance of
order under Annexure-5 series and subsequent order issued on
16.01.2020 vide Annexure-D to the counter, but basing on the
decision taken by the Syndicate in its proceeding under Annexure-3
dt.30.06.2022, pay of the Petitioners were re-fixed. It is contended
that pay so re-fixed basing on Annexure-3 is a proposed fixation of
the pay of the Petitioners and it is not the final one. It is also
contended that basing on the letter issued by Opp. Party No. 2 on
12.07.2022 under Annexure-4, no order has been passed directing
for recovery of any amount from the Petitioners nor it has been
assessed. It is accordingly contended that the writ petition so filed
against Annexure-3 & 4 is premature and it is on mere
apprehension. It is accordingly contended that the Petitioners are
not eligible and entitled to get any benefit as prayed for.
6. Having heard learned counsel appearing for the Parties and after
going through the materials available on record, this Court finds
that pursuant to the order passed under Annexure-1 and sanction of
the extra grant by the Govt. vide letter dtd.13.11.2015 under
Annexure-5 series, Pay of the Petitioners were fixed vide office
order dtd.16.11.2015. Not only that vide another order passed on
30.03.2016 in supersession of the order dt.16.11.2015 under
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Annexure-5 series, pay of the Petitioners as on 03.09.2012 was
fixed with allowing it notionally w.e.f.01.01.1994. Thereafter,
pursuant to the order passed by this Court under Annexure-2,
Petitioners were treated as employees of the University
w.e.f.30.08.1999 and regular salary as well as arrear salary
w.e.f.30.08.1999 to 02.09.2013 was extended with due fixation of
the pay and grade pay. But it is found that basing on the decision
taken by the Syndicate under Annexure-3, pay of the Petitioners has
been re-fixed with due approval of the Vice-Chancellor of the
University. Basing on such approval of the pay so re-fixed, Opp.
Party No. 2 issued the letter under Annexure-4 for recovery of any
excess payment if made.
6.1. Since the pay fixed in terms of the decision of the Syndicate
has not yet been finalized and it is only a proposal, as contended by
the learned counsel appearing for the University, this Court while
disposing the writ petition, directs Opp. Party No. 2 to give due
opportunity of hearing to the Petitioners, prior to re-fixing their pay
in terms of the decision taken by the Syndicate on 30.06.2022 under
Annexure-3. This Court directs Opp. Party No. 2 to fix the pay of
the Petitioners by giving due opportunity of hearing within a period
of two (2) months from the date of receipt of this order.
6.2. However, it is observed that while fixing the pay of the
Petitioners, the relevancy and effect of the order issued on
30.03.2016 under Annexure-5 series in terms of the order passed by
this Court under Annexure-1 as well as order passed on 16.01.2020
under Annexure-D in terms of the order passed by this Court under
Annexure-2 shall be taken into consideration in its proper
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perspective. Till a fresh re-fixation is made, no coercive action shall
be taken against the Petitioners. While fixing of the pay of the
Petitioners as directed, the authorities shall also consider the claim
of the Petitioners to get the benefit of the scale of pay as
recommended by 7th Pay Commission, if the Petitioners are
otherwise eligible to get it.
7. The writ petition is disposed of with the aforesaid observation
and direction.
(Biraja Prasanna Satapathy)
Judge
Sneha
Location: High Court of Orissa, Cuttack
