Orissa High Court
Union Of India vs Rudra Narayan Mishra ....... Opposite ... on 2 July, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 21713 of 2024
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Union of India
and Another ....... Petitioners
-Versus-
Rudra Narayan Mishra ....... Opposite Party
For the Petitioners: - Mr. Deepak Gochhayat
CGC
For the Opp. Party: - Mr. Nirmal Ranjan Routray
Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE S.K. SAHOO
AND
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
---------------------------------------------------------------------------------------
Date of Hearing: 23.06.2025 Date of Judgment: 02.07.2025
---------------------------------------------------------------------------------------
S.S. Mishra, J. The present Writ Petition is filed assailing the order
dated 16.11.2023 passed by the learned Central Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No.230 of 2011,
whereby the learned Tribunal directed the petitioners to re-fix
the pay of the opposite party (Rudra Narayan Mishra) by adding
30% pay element, and to pay the differential amount after such
re-fixation, within 180 days.
2. Heard Mr. Deepak Gochhayat, learned Central
Government Counsel appearing for the Union of India-petitioners
and Mr. Nirmal Ranjan Routray, learned counsel appearing for
the opposite party.
3. A terse and brief narration of facts is provided for
clear understanding and appreciation:-
(a) The opposite party, Rudra Narayan Mishra, was
initially appointed as a Goods Guard in the pay scale of Rs.
4500-7000/- (pre-revised) with effect from 06.10.2003 under
the Divisional Railway Manager, Sambalpur and posted at
Titilagarh.
(b) While serving as Goods Guard, the opposite party
appeared for and was empanelled through the General
Departmental Competitive Examination (GDCE) for the post of
Traffic Apprentice. Pursuant to the Chief Personnel Officer's
letter, he was sent for initial training for the post of Traffic
Apprentice, and after completing the prescribed training and
examinations, he was posted as Deputy Station Superintendent
in the pre-revised scale of Rs.5500-9000/- on a regular basis
under Station Manager, Dunguripali Station, East Coast Railway,
Sambalpur Division, by Office Order dated 22.05.2008.
(c) Upon joining as Deputy Station Superintendent
(DSC) through GDCE, his pay was fixed in the pre-revised scale
of Rs.5500-9000/- with effect from 01.08.2005 on a pro-
forma/notional basis, with actual monetary benefit from
22.05.2008, the date of his joining for the purpose of drawing
increment.
(d) After more than a year, the opposite party submitted
representations and sought information under RTI, claiming that
his pay should be fixed by adding a 30% pay element, as he had
been selected from the running cadre of Goods Guard. However,
the authorities, through a letter dated 07.08.2009, informed him
that since the GDCE scheme is voluntary in nature, the benefit of
reckoning the pay element for fixation of pay of running staff on
their appointment to posts under the GDCE scheme is not
admissible as per Railway Board Establishment (RBE No. 132 of
2006). Consequently, his pay was fixed without including the
30% pay element.
4. Aggrieved by this decision, the opposite party filed
O.A. No.230/2011 before the learned Central Administrative
Tribunal, Cuttack Bench, Cuttack which initially dismissed the
application on 15.10.2014.
5. The opposite party then filed Writ Petition No.21198
of 2014 before this Court and the Division Bench of this Court
vide order dated 26.10.2022 quashed the order passed by the
learned Tribunal on procedural grounds and remitted the matter
back to the Tribunal for fresh adjudication. For ready reference,
relevant part of the said order is reproduced hereunder:-
"5. Mr. D. Gochhayat, learned Central
Government Counsel appearing for the opposite
parties relying upon the counter affidavit stated
that the Tribunal is well justified in passing the
order impugned, which does not warrant any
interference of this Court at this stage. It is
further contended that the scale of pay of the
petitioner has been fixed on his appointment to
working post Dy. S.S. considering notional pay
at Rs.5500/- w.e.f. 01.08.2005 under RS (RP)
Rules, 1997, getting pay fixation notionally
w.e.f. 01.01.2006 as per RS (RP) Rules, 2008
and allowing onwards notional increments as per
extant rules applicable for direct recruitees.
Therefore, it is contended that this Court should
not interfere with the order passed by the
tribunal.
6. Having heard learned counsel for the parties
and after going through the records, this Court
finds that the petitioner claims for fixation of his
scale of pay and, as such, it is contended that
the reliance placed on RBE No.132/2006 issued
by the East Coast Railway Establishment has no
application to the present case and, therefore,
the contention raised by learned counsel for the
opposite parties cannot sustain in the eye of law.
But at the same time it is seen that though the
tribunal heard the matter on 17.03.2014, but
delivered the judgment on 15.10.2014 after long
lapse of time. Therefore, in view of Sub-rule (a)
of Rule-105 of Chapter-XVII of the Central
Administrative Tribunal Rules of Practice, 1993,
the order so passed by the tribunal cannot
sustain in the eye of law, in view of the ratio
decided by this Court in Nityananda Barik
(supra). Thereby, the order dated 15.10.2014
passed by the Central Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No.230 of 2011
under Annexure-1 is liable to be quashed and
the same is hereby quashed. The matter is
remitted back to the tribunal for fresh
adjudication by giving opportunity of hearing to
all the parties."
6. On remand, the learned Central Administrative
Tribunal, Cuttack Bench, Cuttack vide order dated 16.11.2023,
directed the authorities to fix the opposite party's pay in the
scale of Rs.5500-9000/- in terms of the Rules prevailing prior to
RBE No. 132/2006 and to pay the differential amount after re-
fixation by adding the 30% pay element, to be completed within
180 days from the date of receipt of the order.
7. Mr. Gochhayat, learned Central Government Counsel
appearing for the petitioners has contended that the GDCE
Scheme, introduced by Railway Board's Letter dated 20.08.1993,
is a specialized examination conducted to fill up 25% of Direct
Recruitment quota vacancies in certain Group 'C' categories, and
is not a channel of promotion but a method of Direct
Recruitment from among existing employees. The standard of
the examination is similar to that conducted by the Railway
Recruitment Board for open market candidates. The opposite
party's appointment as Traffic Apprentice was thus against the
Direct Recruitment quota and not by way of promotion.
8. Mr. Gochhayat, learned counsel further argued that
the benefit of reckoning the 30% pay element for running staff
appointed to posts under the GDCE Scheme was not admissible
even prior to RBE No.132 of 2006, as there were no specific
orders to that effect from the Board. RBE No. 132 of 2006,
issued on 15.09.2006, clarified that in the absence of such
specific orders, the benefit is not admissible, and pay fixation
should be done without taking into account the 30% pay
element. The respondent joined the post of Deputy Station
Superintendent on 22.05.2008, after the issuance of RBE No.
132 of 2006, and thus his pay was correctly fixed as per the
extant rules.
9. The learned Tribunal, however, relied on the fact
that the opposite party was allowed to pay in the promotional
post with effect from 01.08.2005 for the purpose of increments,
and held that RBE No. 132 of 2006, having come after 2005, had
no retrospective effect and emphasized that past cases should
not be reopened. Accordingly, the learned Tribunal quashed the
rejection order dated 04.01.2011 and directed the authorities to
fix the opposite party's pay in terms of the Rules in vogue prior
to RBE No.132 of 2006, granting the benefit of the 30% pay
element. The aforementioned aspects of the matter have been
carefully dealt by the learned Tribunal, leading to the conclusion
which is reflected in paragraph-8 of the impugned order. For the
convenience of ready reference, paragraph-8 of the order dated
16.11.2023 is reproduced hereunder: -
"8. In view of the aforesaid observation of the
Hon'ble High Court of Orissa and the fact that
the applicant was allowed the pay in the
promotional post w.e.f. 01.08.2005 for the
purpose of increments, which can only be
worked out after fixing the pay. The RBE No.
132/2006 which has come much after 2005,
having not retrospective implication, rather with
emphasis that past cases should not be
reopened, the impugned order of rejection dated
04.01.2011 (A/6) is hereby quashed. The
respondents are directed to fix the pay of the
applicant in the pay scale of Rs. 5500-9000/- in
terms of the RBE in vogue prior to RBE
132/2006 and pay the applicant the differential
amount after refixation of his pay by adding
30% pay element. The entire exercise shall be
completed within a period of 180 days from the
date of receipt of a copy of this order."
10. The petitioners have challenged this reasoning,
arguing that the relevant date for determining the applicable
rules for pay fixation is the date of appointment to the working
post, not the date of initiation of the selection or training. Since
the opposite party joined the working post after the issuance of
RBE No.132 of 2006, his pay fixation must be governed by the
prevailing rules at that time.
11. Mr. Gochhayat, learned counsel for the petitioners,
has also pointed out that the GDCE Scheme is voluntary and
candidates are aware of the mode of pay fixation and that the
respondent's appointment was not a promotion but a direct
recruitment against the quota earmarked for GDCE.
12. Mr. Routray, learned counsel for the opposite party,
has vehemently opposed the Writ Petition of the Union of India.
He contended that the facts of the present case are admitted by
the petitioners herein. On the basis of the admitted facts, the
only issue to be determined is whether RBE No.132 of 2006
dated 15.09.2006 has retrospective effect or not. The learned
Tribunal with succinct reasoning has held that RBE No.132 of
2006 has no retrospective application. Hence, the case of the
petitioners rests there.
13. The petitioners-Union of India by way of the present
petition, are exploring the prayer in the Writ Petition for the
second time. In the earlier Writ Petition being W.P.(C) No.21198
of 2014 filed by the opposite party, this Court has unequivocally
held that RBE No.132 of 2006 has no retrospective application,
however, on procedural grounds remitted the matter back to the
Tribunal. The learned Tribunal by a reasoned order has again
reiterated the same. Hence, the prayer of the Union of India
made in the present Writ Petition has been judicially scrutinized
by the learned Tribunal twice and this Court once in the earlier
round.
14. The issue of applicability of RBE No.132 of 2006
retrospectively came in question before the Allahabad High Court
in Civil Misc. Writ Petition No.33309 of 2011 in the case of
Union of India & Ors. -vrs.- Shubhasis Halder & Anr. The
Allahabad High Court in the concluding paragraph has held as
under:-
"In the present case as observed above, the
petitioner was appointed on 30.9.2000 and his
pay was fixed including running allowance on
2.4.2002. The order for refixation of pay after
deducting running allowance was passed on
26.2.2004. The Circular dated 15.9.2006
specifically provides that it will not have
retrospective effect. It could not be pressed into
service for deducting running allowances as
element of pay for fixing the pay, and to direct
recovery of the excess payment."
15. The attempt of the Union of India to give
retrospective effect to RBE No.132 of 2006 has been negated by
the Allahabad High Court. The same reasoning has been given by
the learned Tribunal while allowing the Original Application of the
opposite party which is impugned in the present petition.
In the case of Commissioner of Income Tax -Vrs.-
Vatika Township Private Limited reported in (2015) 1
Supreme Court Cases 1, it is held as follows:-
"28......One established rule is that unless a
contrary intention appears, a legislation is
presumed not to be intended to have a
retrospective operation. The idea behind the rule
is that a current law should govern current
activities. Law passed today cannot apply to the
events of the past. If we do something today,
we do it keeping in view the law of today and in
force and not tomorrow's backward adjustment
of it. Our belief in the nature of the law is
founded on the bed rock that every human being
is entitled to arrange his affairs by relying on the
existing law and should not find that his plans
have been retrospectively upset. This principle of
law is known as lex prospicit non respicit : law
looks forward not backward. As was observed in
Phillips v. Eyre : (1870) LR 6 QB 1, a
retrospective legislation is contrary to the
general principle that legislation by which the
conduct of mankind is to be regulated when
introduced for the first time to deal with future
acts ought not to change the character of past
transactions carried on upon the faith of the
then existing law.
29. The obvious basis of the principle against
retrospectivity is the principle of 'fairness', which
must be the basis of every legal rule as was
observed in the decision reported in L'Office
Cherifien des Phosphates -Vrs.- Yamashita-
Shinnihon Steamship Co. Ltd. : (1994) 1 AC
486. Thus, legislations which modified accrued
rights or which impose obligations or impose
new duties or attach a new disability have to be
treated as prospective unless the legislative
intent is clearly to give the enactment a
retrospective effect; unless the legislation is for
purpose of supplying an obvious omission in a
former legislation or to explain a former
legislation....
30. We would also like to point out, for the
sake of completeness, that where a benefit is
conferred by a legislation, the rule against a
retrospective construction is different. If a
legislation confers a benefit on some persons but
without inflicting a corresponding detriment on
some other person or on the public generally,
and where to confer such benefit appears to
have been the legislators object, then the
presumption would be that such a legislation,
giving it a purposive construction, would warrant
it to be given a retrospective effect. This exactly
is the justification to treat procedural provisions
as retrospective. In Government of India and
Ors. -Vrs.- Indian Tobacco Association :
(2005) 7 SCC 396, the doctrine of fairness was
held to be relevant factor to construe a statute
conferring a benefit, in the context of it to be
given a retrospective operation. The same
doctrine of fairness, to hold that a statute was
retrospective in nature, was applied in the case
of Vijay -Vrs.- State of Maharashtra and Ors
: (2006) 6 SCC 289. It was held that where a
law is enacted for the benefit of community as a
whole, even in the absence of a provision the
statute may be held to be retrospective in
nature."
Therefore, this Court is not inclined to revisit the
settled issue and upset the impugned order dated 16.11.2023
passed by the learned Central Administrative Tribunal, Cuttack
Bench, Cuttack in O.A. No.230 of 2011.
16. Accordingly, the Writ Petition being devoid of merits,
stands dismissed.
(S.S. Mishra)
Judge
S.K. Sahoo, J. I agree.
(S.K. Sahoo)
The High Court of Orissa, Cuttack
Designation: Senior Stenographer
Reason: Authentication Dated the 2nd July 2025/Swarna
Location: High Court of Orissa
Date: 02-Jul-2025 17:55:15
