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2014 DIGILAW 132 (ORI)

SANJUKTA DAS v. STATE OF ODISHA

2014-02-19

I.MAHANTY, S.PUJAHARI

body2014
JUDGMENT : S. Pujahari, J. - The petitioner, a ministerial staff of the High Court of Orissa in this writ petition challenges the order of opposite party No. 4 at Annexure-9 recalling the order of granting her Time Bound Advancement scale (for the sake of brevity "TBA scale") vide Annexure-2 and also directing recovery of the excess amount, if any, paid to the petitioner pursuant to the said order. Facts relevant for disposal of the writ petition are as under:- The petitioner joined as a Junior Assistant in the establishment of High Court of Orissa on 24.2.1982. While working as such, she was allowed to officiate in the post of Senior Assistant on 27.10.1987, to which she was regularly promoted on 09.12.1987. By order dated 25.01.1989 vide Annexure-1, her officiating period of service was deemed to be promotion in the cadre of Senior Assistant with effect from 27.10.1987. As the petitioner was wallowing in the cadre of Senior Assistant for 15 years including the period of officiating, in view of the O.R.S.P. Rules, 1998 TBA scale was granted in her favour on 27.10.2002 vide order dated 31.7.2003 under Annexure-2. But, the petitioner having already been promoted to the post of Superintendent Level-II by the time the order of TBA scale was passed inasmuch as she was promoted to Level-II Section Officer on 04.12.2012, the opposite party No. 4 sought for a clarification from the administrative department (opposite party No. 2) with regard to entitlement of the petitioner and also fixation of her scale of pay as per Rule 74(b) of the Orissa Service Code vide letter dated 8.11.2004 under Annexure-3. Opposite party No. 2 then on a clarification at Annexure-4 held the petitioner to be not entitled to the TBA scale of pay inasmuch as her period of officiating which was for a period of about one and half months cannot be taken into consideration for grant of TBA scale of pay in view of memorandum dated 05.02.2004 at Annexure-5 of the Government of Orissa in Finance Department (opposite party No. 1). On receipt of the same, opposite party No. 4 has passed the impugned order. The petitioner made a representation to the opposite party No. 4 against the said order vide Annexure-8. On receipt of the same, opposite party No. 4 has passed the impugned order. The petitioner made a representation to the opposite party No. 4 against the said order vide Annexure-8. But, no action having been taken on the same, the petitioner has preferred this writ petition with the pleading that since the period of officiating promotion of the petitioner was regularized vide Annexure-1 and the memorandum of the Government of Odisha in Finance Department has got prospective application, the impugned order of opposite party No. 4 is unsustainable and, as such, the said order be quashed and opposite party No. 4 be directed to fix her TBA scale of pay from 27.10.2002. 2. In response to the aforesaid averments of the petitioner, the stand taken by the opposite parties, more particularly opposite party No. 2 (Administrative Department) that officiating period in a cadre cannot be calculated for fixation of pay or seniority. Admittedly, the petitioner having been promoted to the next higher cadre before completion of fifteen years, she is not entitled to the TBA scale in the cadre of Senior Assistant. Therefore, the impugned order cannot be found fault with. 3. During course of hearing, it has been submitted by learned counsel for the petitioner that there is no dispute of the fact that the petitioner was allowed to officiate from 27.10.1987 and regular promotion was given to her on 09.12.1987 and thereafter opposite party No. 4 regularized her promotion from the date of her officiating promotion vide Annexure-1 and considering the same, she having been granted her TBA scale from the date she completed fifteen years of service in view of O.S.R.P. Rules, 1998, the Administrative Department should not have clarified that in view of the memorandum at Annexure-5 as the petitioner had not completed fifteen years in the cadre of Senior Assistant, she could not have been allowed TBA considering her officiating period and relying on the same, the opposite party No. 4 should not have passed the order under Annexure-9. Otherwise also, the petitioner having been given the benefit of uninterrupted officiating service in a higher grade anterior to the issue of office memorandum at Annexure-5, which saves the past dereliction, the impugned order is unsustainable. 4. Otherwise also, the petitioner having been given the benefit of uninterrupted officiating service in a higher grade anterior to the issue of office memorandum at Annexure-5, which saves the past dereliction, the impugned order is unsustainable. 4. Learned counsel for the State does not dispute the fact that the office memorandum at Annexure-5 has got prospective application and it saves the past dereliction and also the petitioner was given the benefit prior to the office memorandum. Therefore, it would be apposite to have a look on the memorandum of the Finance Department, which reads as thus:- FINANCE DEPARTMENT *** OFFICE MEMORANDUM No. CS-I-3/2004-5067/F, Bhubaneswar, the 5th February, 2004 Sub:- Principles for grant of additional pay holding combination of posts/appointments. Under Rule 96 of the Orissa Service Code, Para-99 of the companion to Orissa Service Code and T.A. Rules, Finance Department O.M. No. Codes-1/77-1962/F, dtd. 07.04.77 and Finance Department Memo No. CS-I-54986/F, dt. 19.10.78, the appointing authorities have been delegated with full powers for the allowing combination of appointments vis-a-vis granting additional pay to a Government servants who officiates for a period not less than one month and not more than six months. Instances have come to the notice of Finance Department that appointing authorities have allowed above combination of appointments to a Government servant beyond six months violating the provision enshrined in Finance Department O.M. No. Codes-1/77-1962/F, dt. 7.4.77 without prior concurrence of Finance Department and thereafter come for regularization by way of ex-post facto approval of the same. While considering such proposal at the level of Finance Department it is, also seen that in some cases, appointing authorities have allowed some Government servants to remain in full charge of the higher post at the fag end of their services and allowed them to retire from Government service on superannuating during such period of officiation in a higher post, such officiating period is also being taken into considering for earning increment in the promotional post in contravention of the provisions envisaged in Rule 79(c) of Orissa Service Code. As a result, senior employees even in the regular line who have been allowed promotion along with his juniors earn increment at a later date and claim salary at par with their juniors. As a result, senior employees even in the regular line who have been allowed promotion along with his juniors earn increment at a later date and claim salary at par with their juniors. Besides, a senior employee, if retires along with his junior and has not been allowed to remain in full charge of a higher post also gets less pension than his junior who was allowed to officiate in a higher post. Such a situation would be quite anomalous and iniquitous. To overcome these difficulties, Government after careful consideration have been pleased to issue the following guidelines in partial modification of Finance Department Memo No. CS-162/78-54986/F, dt. 19.10.78 referred to above. 1. Where a Government Servant is formally appointed to hold full charge of higher post in the same office/establishment in addition to his own duties by the appointing authority, he shall be allowed the pay of the higher post only without any additional pay for performing the duties for the lower post subject to the following conditions:- (i) Whenever, a Government Servant is allowed to remain in full charge of an ex-cadre post due to administrative exigencies or otherwise by authority other than the appointing authority, he will not be allowed higher officiating pay. (ii) Where normal promotion is given to a Government servant followed by such combination of appointments such services rendered in the higher post during officiation by such officials, will not be counted for determination of his seniority, protection of pay and earning of increment in the promotional post. In other words, the pay of such officials shall be fixed in the promotional post basing on his presumptive pay of the lower post. (iii) Whether a Government Servant is allowed to remain in full charge of a higher post at the fag end of his service in additional to his own duties and allowed to retire on superannuation while continuing in that higher post, the officiating pay allowed to him in the higher post will not be taken into account for determination of his pensionary benefits. However, in such cases, he is entitled to pensionary benefits basing on the presumptive pay/average pay of the lower post, i.e. what he would have drawn, had he not been officiated in the higher post. The relevant provisions under Rule 48, of the Orissa Civil Services Pension Rules, 1992 shall be deemed to have been modified accordingly. However, in such cases, he is entitled to pensionary benefits basing on the presumptive pay/average pay of the lower post, i.e. what he would have drawn, had he not been officiated in the higher post. The relevant provisions under Rule 48, of the Orissa Civil Services Pension Rules, 1992 shall be deemed to have been modified accordingly. Necessary amendment to the above rules shall be issue in due course. 2. Where a Government servant officiates or holds full charge of duties of two posts not in the same office/establishment and not directly one above the other, he will entitled to additional pay limited to special pay admissible for such post as would be decided by the Government from time to time. 3. No Government servant is allowed to remain in additional charge of a higher post beyond six months without prior concurrence of Finance Department. 4. This order shall take effect from the date of issue and the cases already decided shall not be reopened and cases which would crop up after issue of this office memorandum for decision shall be covered under the provisions of this office Memorandum. (Dr. U. Sarat Chandran) PRINCIPAL SECRETARY TO GOVERNMENT 5. A bare perusal of the aforesaid memorandum would go to show that officiating promotion in a particular cadre cannot be computed for fixation of pay or seniority. But, considering the fact that prior to the aforesaid memorandum in many cases employees of different departments were allowed to officiate have been extended the benefit of such service for fixation of their pay, which was contrary to the provision of Service Code, the Government of Odisha in the said memorandum clarified the same to be contrary to the Code, but saved such past cases of dereliction specifically inasmuch as at paragraph-4, it has been mentioned that the same shall have prospective application and cases already decided shall not be reopened. The petitioner was given TBA scale prior to the issue of such memorandum as such the case of the petitioner was squarely covered by such saving in the memorandum. The petitioner was given TBA scale prior to the issue of such memorandum as such the case of the petitioner was squarely covered by such saving in the memorandum. The Government of Odisha in the administrative department in the clarification sought for wrongly interpreting the memorandum at Annexure-5 advised the employer of the petitioner that the petitioner was not entitled to TBA scale inasmuch as she had not completed fifteen years of service in the cadre of Senior Assistant in view of her promotion to the post of next cadre before completing fifteen years. 6. Such clarification of the opposite party No. 2 (Administrative Department) being contrary to the memorandum of the Government at Annexure-5, the impugned order passed by the opposite party No. 4 recalling the order of grant of TBA scale of pay to the petitioner, i.e., from 27.10.2002 basing on such clarification, therefore cannot be sustained. Hence, we quash the impugned order at Annexure-9 and direct the opposite party No. 4 to re-fix the pay of the petitioner granting TBA scale of pay since 27.10.2002 extending the financial benefit, to which the petitioner is entitled to. With the aforesaid observation and direction, the writ petition is allowed. Final Result : Allowed