Orissa High Court
Iswara Chandra Mishra vs The State Of Odisha & Ors. .... Opposite ... on 25 June, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34382 of 2020
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Iswara Chandra Mishra .... Petitioner(s)
-versus-
The State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Swapna Kumar Ojha, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-22.04.2024
DATE OF JUDGMENT: -25.06.2024
Dr. S.K. Panigrahi, J.
1. In filing this Writ Petition, the Petitioner being the Inspector of
Cooperative Societies in the Office of the District Fisheries, Bargarh, has
challenged the order dated 12th October, 2018/Annexure-2 passed by the
Additional Director of Fisheries (Admn.), Directorate of Fisheries,
Odisha.
2. Apart from the above challenge, the Petitioner has also sought for a
direction from this Court to the Opposite Parties for stepping up of his
pay at par with his junior named Hemendra Narayan Mohanty as per
the pay fixation under the Orissa Revised Scales of Pay Rules, 2008.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
I. FACTUAL MATRIX OF THE CASE:
3. The brief fact of the case in brevity remains:-
(i) The Petitioner as well as his junior Mr. Hemendra Narayan Mohanty,
not only belong to the same cadre, but were also placed in identical
Grade Pay of Rs.4,200/- at the initial stage of their joining. Mr.
Hemendra Narayan Mohanty got appointment on 29.06.2006 and joined
in the cadre of Inspector (Fy.) on 05.07.2006. Accordingly, from
01.07.2007 the scale of pay of Mr. Hemendra Narayan Mohanty was
fixed at Rs.9710/-+Rs.4,200/- (Grade Pay), whereas the scale of pay of the
Petitioner was fixed at Rs.11,120/-+Rs.4,200/- (Grade Pay).
(ii) In fact, from that date till the date of further fixation vide Office order
dated 10.06.2013 Mr. Hemendra Narayan Mohanty got lesser pay than
the present Petitioner. Accordingly, upon fixation of the scale of pay Mr.
Hemendra Narayan Mohanty has been getting higher pay than the
present Petitioner. Since Mr. Hemendra Narayan Mohanty is junior to
the present Petitioner gets higher pay, the present Petitioner being
senior claims that his pay should be stepped up to the level of Mr.
Hemendra Narayan Mohanty.
(iii) Thereafter, being aggrieved by such action of the authority concerned,
the Petitioner made a representation for removal of pay anomaly.
Accordingly, the Director of Fisheries, Cuttack/ Opposite Party No.2
vide letter No.1745 dated 30.01.2014, sent the matter to the
Commissioner-cum-Secretary to Government, Fisheries and Animal
Resources Development Department, Odisha/the Opposite Party No.1
for consideration. Upon getting such communication the Opposite Party
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
No.1 vide letter No.2425 dated 25.02.2014 issued instruction to the
Opposite Party No.2 for sanctioning the pay protection from the date of
joining of Mr. Hemendra Narayan Mohanty i.e. from 05.07.2006 as per
the Resolution No.765 dated 23.09.2010 G.R(AR) Department of the
Government of Odisha.
(iv) Thereafter, the Opposite Party No.1 issued another order bearing
No.9184 dated 16.08.2014 to the Opposite Party No.2 for modifying the
order dated 24.06.2010 and also for regularizing the services of Mr.
Hemendra Narayan Mohanty by removing the pay anomaly.
Accordingly, the scale of pay of Mr. Hemendra Narayan Mohanty was
fixed from 01.01.2006 at Rs.13,950/- + Rs.4,200/- (Grade Pay), which was
also much more than the pay of the present Petitioner as he was
allowed to draw the salary at the scale of pay of Rs.10,230/- + Rs.4,200/-
(Grade Pay) from 01.01.2006.
(v) In addition to the above, the Opposite Party No.1 vide letter No.753
dated 22.01.2015 also instructed the Opposite Party No.2 to take
necessary action for sanctioning the benefit of stepping up of the pay in
favour of the Petitioner.
(vi) At this juncture, learned counsel for the Petitioner submits that despite
the above development the Opposite Party No.2 vide letter No.4524
dated 24.03.2015 rejected the grievance of the Petitioner on the premise
of the prohibitions available in the clarification dated 08.04.2010 issued
by the G.A. Department, Government of Odisha.
(vii) Thereafter, being aggrieved by such action of the Opposite Party No.2,
the Petitioner on 08.04.2015 preferred appeal before the Opposite Party
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
No.1. Accordingly, upon hearing the parties concerned and looking to
the averments made in the appeal memorandum, the Opposite Party
No.1 vide order No.14781 dated 28.11.2016 directed the Opposite Party
No.2 for examining the grievance of the Petitioner and taking
appropriate action regarding removal of pay anomaly as per the Rules.
(viii) Learned counsel for the Petitioner also contends that despite such order
of the Opposite Party No.1, the Opposite Party No.2 rejected the claim
of the present Petitioner by applying the footnote of the clarification on
the O.R.S.P. Rules, 2008 vide the Government in the Finance
Department Memo No.18409/F dated 08.04.2010. Hence, being
aggrieved by such action of the authorities concerned, the Petitioner has
preferred this Writ Petition with the above noted prayer.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
4. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions.
(i) Challenging the impugned order, learned counsel for the Petitioner
submits that since Mr. Hemendra Narayan Mohanty is junior to the
present Petitioner, he cannot get more pay/salary than the present
Petitioner upon revision of scale of pay.
(ii) He further submits that the clarification issued by the Department
based on which the claim of the Petitioner has been rejected, cannot
override the basic rules as the same runs contrary to the Revised Pay
Rules. At this juncture, learned counsel for the Petitioner reiterates the
fact that Mr. Hemendra Narayan Mohanty came to the Institution for
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
the first time in the year 2006 and his services was regularized in the
year 2010 but with retrospective effect from 2008.
(iii) He again contends that the provision under Rule 29 of the Odisha
Revised Pay Rules, 2008 makes it clear that the stepping up of pay is
permissible and the reasons should be indicated while granting the
same. The Orissa Rationalization of Personnel Rules, 2007 and its
amendment made on 23.09.2010, do not prohibit the authority to apply
the principles of stepping up of pay in respect of the Seniors, in the
event the junior gets higher pay.
(iv) The clarificatory letter dated 08.04.2010 issued by the Finance
Department cannot stand on the way of granting of benefit of stepping
up of pay to the Petitioner, as the said clarification cannot supplant the
original instrument i.e. the provisions of the Odisha Revised Pay Rules,
2008. Since the benefit of higher pay was granted in favour of Mr.
Hemendra Narayan Mohanty with retrospective effect from 2006, the
above noted clarification cannot have the retrospective effect for the
purpose of debarring the Petitioner from availing the statutory benefits.
(v) In the conclusion, learned counsel for the Petitioner submits that in the
meantime since the Petitioner has been superannuated from service
after spoiling a valuable period of his life, he cannot be denied of the
benefit of stepping up of his pay.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :
5. Learned counsel for the State earnestly made the following submissions
in support of his contentions
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
(i) At the initial stage of his submission, learned counsel for the State
submits that in order to avail the benefit of stepping up of pay like the
junior, the senior has to satisfy the condition that he was getting more
pay than his junior in the pre-revised scale of pay. Further, the pay of
Mr. Hemendra Narayan Mohanty prior to the revision was to be
considered after extending him the benefit of pay protection, which he
is entitled to as per the provisions of a Special Statute, which has
overriding effect on other Rules.
(vii) He further submits that in view of the provisions of the "Orissa
Rationalization of Personnel Rules/ 2007" read with Resolution dated
23.09.2010 fixing the guidelines for deciding pay of surplus employees
redeployed prior to publication of the "Orissa Rationalization of
Personnel Rules/ 2007", the pay of Mr. Hemendra Narayan Mohanty
was fixed retrospectively from the date of his joining in the
Government.
(viii) The table showing the scale of pay of Mr. Hemendra Narayan Mohanty
as well as the Petitioner at the time of revision under the ORSP Rules,
2008 is extracted herein below:-
Hemendra Narayan
Name Ishwar Chandra Mishra
Mohanty
05.07.2006, Prior to that he
Date of entry in
11.05.1999 was working as G.M,
Fisheries Department
FISHFED, BBSR
Post held as on
ICS(Fy.) G.M. FISHFED
01.01.05
5375/- (in the scale of pay 10750 (in the scale of pay
Pay as on 01.01.2005
Rs.4750-125-7500) Rs.8000-275-13500)
Pay as on 01.01.2006 Pay Rs.10230/- + G.P Not yet joined in the
fixed as per ORSP, Rs.4200/- fisheries Deptt.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
Pay Rs.13950/- + G.P.
Pay Rs.10230/- + G.P
Pay as on 05.07.2006 Rs.4200/-, under ORSP,
Rs.4200/-
(ix) At this juncture, learned counsel for the State submits that while
working in the FISHFED before his redeployment in the Government
Mr. Hemendra Narayan Mohanty was getting much more pay than the
present Petitioner. He was even not given pay protection at the time of
his redeployment, which was given to him subsequently with
retrospective effect from 05.07.2006, while fixing his pay under the
ORSP Rules, 2008.
(x) Learned counsel for the State also contends that as per the provision
under the Rule-20 of the ORSP Rules, 2008, if any question arises
relating to interpretation of any of the provisions of these rules for
removal of anomalies, omissions, difficulties, printing and clerical
errors, all such matters shall be referred to the Government for
clarification and decision. In view of the said rule, the Government is
competent enough to issue necessary clarification and accordingly, a
clarification has been issued by the Government in Finance Department
on various points vide Memo dated 08.04.2010. In the said clarification
it has been clarified that "where the pay of the junior Government
servant is fixed at a higher stage than his senior on account of protection
of pay/exercise of option in the revised scale of pay, the benefit of
stepping up/antedation of pay shall not be admissible to them."
(xi) He, accordingly, submits that in the instant case since the pay of Mr.
Hemendra Narayan Mohanty has been fixed at a higher stage than the
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
present Petitioner due to protection of pay, the Petitioner cannot claim
for stepping up of his pay. He also contends that the said clarification
does not confer any right or has not taken away any right conferred
under the ORSP Rules, 2008. It is only clarificatory in nature and in
consonance with the provisions of the ORSP Rules, 2008.
(xii) In the process, learned counsel for the State also contends that the
Petitioner in this Writ Petition has not challenged the above noted
Memo dated 08.04.2010 clarifying the provisions of the ORSP Rules,
2008. In his support, he relies on the decision of this Court in the case of
The State of Odisha & Ors. v. Jogendra Biswal and Anr. 1
(xiii) In the conclusion, learned counsel for the State submits that the claim of
the Petitioner for stepping up of his pay at par with the pay of Mr.
Hemendra Narayan Mohanty is not sustainable in law as Mr.
Hemendra Narayan Mohanty was getting more pay than the Petitioner
after pay protection prior to revision under the ORSP Rules, 2008. He,
accordingly, prays for dismissal of this Writ Petition.
IV. COURT'S REASONING AND ANALYSIS:
6. Learned counsel for the State contends that as per the provision under
the ORSP Rules, 2008 the pay of the senior should be stepped up to the
stage of his/her junior, if the senior employee gets less pay than his/her
junior after fixation under the ORSP, 2008, on following situations:-
a. If the senior was getting more or equal pay than the junior
before fixation of pay under the ORSP, 2008, then the pay of the
Senior should be stepped up to the stage of junior.
Signature Not
Verified
2017 SCC OnLine Ori 65 (W.P.(C) No.22443 of 2016)
Digitally Signed
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
b. The Senior employee in order to avail the benefit of stepping up
of pay with that of his junior, has to satisfy the condition that he
was getting more pay than that of his junior in the pre-revised
scale of pay.
7. In this context, the relevant provision more particularly the provision at
Note-2 of the Rule-7 of the ORSP, 2008 is extracted herein below:-
"Rule-7, Note-2:- Wherein the fixation of pay under
sub-rule (1) the pay of a Government servant who in
the existing scale was drawing immediately before
1st day of January, 2006 more pay than another
Government servant junior to him in the same grade
in the cadre he belongs gets fixed in the revised pay
band at a stage lower than that of such junior, his
pay shall be stepped up to the same stage in the
revised pay band as that of his junior."
8. Further, the Orissa Rationalization of Personnel Rules, 2007 came into
force with effect from the date of its publication in the Odisha Gazette
i.e. 24.01.2008. It is contended that as many employees had already been
redeployed prior to that including Mr. Hemendra Narayan Mohanty,
the junior to the Petitioner, the Government of Odisha in the General
Administration (AR) Department passed a Resolution on 23.09.2010
fixing the guidelines for deciding pay of surplus employees of
redeployed prior to publication of the "Orissa Rationalization of
Personnel Rules/ 2007".
9. As per the Clause (A) of the said Resolution "If the surplus employees
were Government employees prior to their redeployment, then:
a. The pay of the employees redeployed to a vacant post
corresponding to any pay scale shall not be less than the pay
drawn by him on the post held prior to his redeployment.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
b. If the maximum of the pay scale of the post to which the employee
is deployed is lower than his earlier pay, then the pay will be fixed
at the maximum of the pay scales. The differential amount
(difference between his earlier pay prior to redeployment and the
maximum pay of the new scale) will be treated as personal pay
and be adjusted in subsequent increment(s)."
As per clause (B) of the above said Resolution "if the employees were NOT
Government employees prior to their redeployment, then their pay shall be
fixed in the manner as applicable to the Government employee outlined in para
(A) above."
10. While employed with FISHFED before his redeployment in the
Government, Mr. Hemendra Narayan Mohanty was receiving a
significantly higher salary than the current Petitioner. Upon his
redeployment, Mr. Mohanty was not initially granted pay protection;
however, it was subsequently provided to him with retrospective effect
from July 5, 2006, during the adjustment of his pay under the Odisha
Revised Scales of Pay (ORSP) Rules, 2008.
11. According to Rule 20 of the ORSP Rules, 2008, any questions regarding
the interpretation of these rules, including the removal of anomalies,
omissions, difficulties, or clerical errors, must be referred to the
Government for clarification and decision. This rule empowers the
Government to issue the necessary clarifications. Accordingly, the
Government, through the Finance Department, issued a clarification on
various points via a memorandum dated April 8, 2010. This
memorandum explicitly stated that "where the pay of a junior Government
servant is fixed at a higher stage than his senior due to pay protection or the
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
exercise of an option in the revised scale of pay, the benefit of stepping up or
antedation of pay shall not be admissible to them."
12. In the current case, since Mr. Hemendra Narayan Mohanty's pay was
fixed at a higher stage than the Petitioner's due to pay protection/ the
Petitioner cannot claim an adjustment to his pay to match or exceed Mr.
Mohanty. The aforementioned clarification does not confer new rights
or revoke any rights established under the ORSP Rules, 2008; it is
purely interpretative and consistent with the provisions of the ORSP
Rules, 2008.
13. Thus, the Government's clarification reaffirms the existing rules and
clarifies that stepping up of pay or backdating it to rectify discrepancies
is not permitted when the pay discrepancy arises from pay protection or
the exercise of an option under the revised scale of pay. This ensures a
clear understanding and uniform application of the ORSP Rules, 2008,
without altering any fundamental rights or entitlements previously
granted by these rules.
14. Accordingly, this Court does not incline to accede to the submissions of
the Petitioner. With respect to the aforesaid discussion, the Rules and
the cases cited hereinabove, this Court is not inclined to entertain the
prayer of the Petitioner.
15. This Writ Petition is, accordingly, dismissed.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 25th June., 2024/
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
