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Orissa High Court
Jameswar Mishra vs State Of Odisha & Ors. ..... Opposite ... on 10 February, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.4211 of 2021
Jameswar Mishra ... Petitioner
Mr. B.S. Tripathy 1, Sr. Advocate
along with
Mr. M. Kar, Advocate
-versus-
State of Odisha & Ors. ..... Opposite Parties
Mr. A. Tripathy, AGA
Mr. D. Mohapatra, Sr. Advocate
along with
Mr. M.R. Pradhan, Advocate
(Opp. Party No. 5)
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
10.02.2026
Order No.16
1. This matter is taken up through hybrid mode.
2. Heard Mr. B.S. Tripathy 1, learned Sr. Counsel appearing for the
Petitioner along with Mr. M. Kar, learned counsel, Mr. A. Tripathy,
learned Addl. Govt. Advocate appearing for the State-Opp. Parties
and Mr. D. Mohapatra, learned Sr. Counsel appearing for the Private
Opp. Party No. 5 along with Mr. M.R. Pradhan, learned counsel.
3. The present writ petition has been filed inter alia with the
following prayer:-
"It is therefore prayed that this Hon'ble Court may
graciously be pleased to
i) allow the writ petition;
ii) quash the impugned order dtd.4.11.2019 as at ii)
Annexure-12 series
iii) Direct/order the Opp. Party No.1 to allow stepping up
of pay of the petitioner with all consequential benefits at
par with the Opp. Parties No.4 & 5 from the date of joining
of the petitioner i.e. from 11.4.2012.
Pass such other order/orders in favour of the
petitioner for the ends of justice.
And for which kind act the petitioner as in duty
bound shall ever pray."
4. Learned Sr. Counsel appearing for the Petitioner contended that
Petitioner and Opp. Party No. 5 both got selected and appointed as
against the post of Public Prosecutor in Group-A service under the
Home Department pursuant to the advertisement issued by the
Odisha Public Service Commission (in short Commission) vide
Advertisement No. 8 of 2008-09. Petitioner after coming out
successful and on being recommended by the Commission vide
notification dtd.21.12.2011 under Annexure-2, both were appointed
as Public Prosecutor, Group-A of the Odisha State Prosecution
Service in the scale of pay of Rs.15,600/- - Rs.39,100/- with Grade
Pay of Rs.6,600/- along with D.A. and other allowances.
4.1. Learned Sr. Counsel appearing for the Petitioner contended that
though both the Petitioner and Opp. Party No. 5 were appointed in
the scale of pay of Rs.15,600/- - Rs.39,100/- with Grade Pay of
Rs.6,600/-, bur when the pay and allowance of the Petitioner was
calculated at Rs.33,186/- with gross salary at Rs.50,146/- and that of
Private Opp. Party No. 5 at Rs.38,992/- and Rs.59,052/-
respectively, Petitioner raised a claim before the Opp. Party No. 1
under Annexure-5, claiming extension of similar benefit of pay and
allowance as has been allowed in favour of Private Opp. Party No.
5.
4.2. It is contended that such claim of the Petitioner though was
forwarded, but the same was rejected vide the impugned
communication dtd.04.11.2019 under Annexure-12 series, inter alia
on the ground that Private Opp. Party No. 5 since prior to his
appointment as Public Prosecutor was working as
Assistant/Additional Public Prosecutor, his pay after his
appointment along with the Petitioner was stepped up taking
recourse to the provisions contained under the Proviso to Rule 74(b)
of the Odisha Service Code (in short Code). The said provision
reads as follows:-
"74(b) Where a Government servant holding a post, is
promoted or appointed to another post carrying duties and
responsibilities of greater importance than those attached to
the post held by him, his initial pay in the time-scale of the
higher post shall be fixed at the stage above the pay
notionally arrived at by increasing his pay in respect of the
lower post by one increment at the stage at which such pay
has accrued:
Provided that where a Government servant,
immediately before his promotion or appointment to a
higher post, is drawing pay at the maximum of the time-
scale of the lower post, his initial pay in the time-scale of
the higher post shall be fixed at the stage next above the pay
notionally arrived at by increasing his pay in respect of the
lower post by an amount equal to his last increment in the
time-scale of the lower post."
4.3. It is also contended that claim of the Petitioner was rejected on
another ground that such step up of pay of the Petitioner can only be
made at the first instance by the head of the office i.e. Director,
Public Prosecution and Home Department is not competent to step
up the pay as claimed. It is accordingly contended that the ground
on which claim of the Petitioner has been rejected vide the
impugned communication dtd.04.11.2019 under Annexure-12 series
is not sustainable in the eye of law.
5. Learned Addl. Govt. Advocate on the other hand made his
submission basing on the stand taken in the counter affidavit so
filed. It is the main contention of the learned Addl. Govt. Advocate
that since Opp. Party No. 5 prior to his appointment as a Public
Prosecutor pursuant to Annexure-1 advertisement was continuing as
Assistant/Additional Public Prosecutor, after such appointment of
the Petitioner along with Opp. Party No. 5, pay of Opp. Party No. 5
was stepped up taking recourse to the provisions contained under the
Proviso to Rule 74(b) of the Odisha Service Code.
5.1. It is contended that since Private Opp. Party No. 5 prior to his
appointment was continuing under the Govt., his pay was stepped up
taking recourse to the aforesaid provision and Petitioner is not
eligible and entitled to get such benefit, which has been duly
considered and rejected vide the impugned communication
dtd.04.11.2019 under Annexure-12 series.
6. Similar contention was also made by the learned Sr. Counsel
appearing for Opp. Party No. 5. It is contended that pay of the
Petitioner was stepped up and fixed in terms of the provision
contained under the proviso to Rule 74(b) of the Odisha Service
Code vide office order dtd.25.06.2012 under Annexure-C/5 and his
pay was fixed at Rs.18,520/- in P.B. II in the scale of pay of
Rs.15,600/- - Rs.39,100/- with Grade Pay of Rs.6,600/-. It is
accordingly contended that Petitioner cannot claim the benefit as has
been extended in favour of Opp. Party No. 5 in view of the
provisions contained under the Proviso to Rule 74(b) of the Odisha
Service Code.
7. To the submission made by the learned Addl. Govt. Advocate and
learned Sr. Counsel appearing for Opp. Party No. 5, Mr. Tripathy,
learned Sr. Counsel appearing for the Petitioner made further
contention contending inter alia that since while rejecting the
Petitioner's claim, it has been observed that Director, Public
Prosecution is the competent authority to consider the claim for
stepping up of pay at the first instance, he may be permitted to move
Opp. Party No. 2 for consideration of his grievance in terms of the
observation indicated in the impugned order. In addition to the
same, learned Sr. Counsel contended that in view of the decision of
the Hon'ble Apex Court reported in AIR 2015 SC 1777, (2009) 3
SCC 94, AIR 1997 SC 1783 as well as 2022 (1) OLR 917,
Petitioner's pay and allowances cannot be fixed below Opp. Party
No. 5.
8. Having heard learned counsel appearing for the Parties and
considering the submission made, this Court while is not inclined to
interfere with the impugned rejection of the Petitioner's claim so far
as stepping up of his pay and allowance is concerned to that of Opp.
Party No. 5, but grants liberty to move Opp. Party No. 2 for
consideration of his grievance in terms of the Finance Department
office memorandum dtd.08.11.2010, so reflected in the impugned
order dtd.04.11.2019.
8.1. It is further observed that while taking such a decision, the
relevancy and effect of the judgments so cited (supra) be taken into
consideration in its proper prospective. Petitioner is permitted to
enclose the judgments so relied on by him along with his
representation before Opp. Party No. 2 for compliance. Opp. Party
No. 2 is directed to take a lawful decision within a period of three
(3) months from the date of receipt of the representation. Petitioner
is permitted to make the representation within a period of three (3)
weeks hence.
9. The writ petition accordingly stands disposed of with the
aforesaid observation and direction.
(BIRAJA PRASANNA SATAPATHY)
Judge
Sneha
Location: High Court of Orissa, Cuttack
