JUDGMENT S. N. PRASAD, J. - Heard learned counsel for the petitioners and Mr. Amit Pattnaik, learned counsel appearing for the State. In these batch cases, similar issue is involved hence same are being decided by a common order. The relief sought for in these writ petitions are as follows:- (i) For quashing the order dated 25.07.2013 (Annexure-14) wherein direction has been issued by the Under Secretary, Works Department, Government of Odisha to the Executive Engineer, Bhubaneswar (R & B) Division No.I to recover the said amount released in favour of the petitioner from 1.1.1996 to 12.11.2006 by way of minimum of pay scale which was without any approval of Finance Department to the State Government being violation of “FRBM Act”. (ii) The order dated 1.8.2013 disclosing the name of the employees from whom the salary is to be recovered. (iii) To release the arrears of salary on the extent to differential D.A. by allowing the benefit of D.A. which is being paid to the regular Government employee as per the Orissa Revised Scales of Pay Rules, 1998. (iv) To direct the opposite parties to extend the benefit of revised pay on the basis of ORSP Rules, 2008 and corresponding D.A. till 13.01.2011 the date on which the petitioners have been taken under work charged establishment and continue to pay the arrears of salary as per Annexure-8 and 9. 2. Facts of the case is that the petitioners are DLR Clerks having engaged on different dates, continuing in service continuously without any break but not been paid salary at par with the regular government employee although the nature of work performed by them is exactly similar to the regular government employee. 3. The petitioners are entitled to get the minimum of pay scale in view of the order passed by the Hon’ble Supreme Court in Civil Appeal No.2541-42 of 1994 disposing of on 18.04.1994 by which by modifying the order passed in OJC No.4131 of 1989 and 4132 of 1989, direction was given to pay the minimum of pay scale as is being paid to the regular employees. 4. 4. When the wages of minimum of pay scale has not been given, the petitioner of W.P.(C) No.17405 of 2012 namely Gagan Bihari Bhanja has approached this Court vide W.P.(C) No.3962 of 2007, this Court wherein the decision of the Engineer-in-Chief-cum-Secretary to the Government, Works Department dated 9.3.2007 by which claim of release of wages @ minimum of pay scale has been revised was challenged and this Court disposed of the writ petition vide order dated 29.07.2008 placing reliance of the order passed by the Division Bench of this Court in W.P.(C) No.3912 of 2007 by which Annexure-4 dated 09.03.2007 was passed taking into consideration the order passed by the Hon’ble Supreme Court in C.A.No.2541-42 of 1994. Thereafter the Government has taken decision regarding release of minimum of pay scale in pursuance to the judgment passed by this Court in W.P.(C) No.3912 of 2007 in the case of Md. Zamilur Rahaman vrs. State of Orissa and implemented the same by restoring the benefit of wages to the petitioners D.L.R. which was allowed vide letter No.19754 dated 13.11.2006 that the wages at the minimum of pay scale as prescribed under ORSP Rules, 1998 plus 41% of the D.A. with the concurrence of the Finance Department dated 9.6.2009 and accordingly the petitioner has also been extended the said benefit, continue to be paid the minimum of the pay scale on the basis of ORSP Rules, 1998 which was enforced after the recommendation of the 5th Pay Revision Committee of the central Government. 5. The recommendation of 6th Pay Revision Committee has come, the Government of Odisha has adopted the same by virtue of ORSP Rules, 2008 dated 24.12.2008 implemented w.e.f. 1.1.2006. After the implementation of ORSP Rules, 2008 the petitioners have raised their grievance that they are entitled to be given corresponding pay scale (minimum of pay scale in pursuance to the revised pay scale in terms of ORSP Rules, 2008). 6. After the implementation of ORSP Rules, 2008 the petitioners have raised their grievance that they are entitled to be given corresponding pay scale (minimum of pay scale in pursuance to the revised pay scale in terms of ORSP Rules, 2008). 6. But the grievance of the petitioners have not been redressed having no alternative remedy, they have filed this writ petition originally praying therein to direct the authorities to extend the corresponding revised pay scale as per the ORSP Rules, 2008 on the ground that the benefit in terms of ORSP Rules, 1998 has been given to the petitioner in pursuance to the direction of the Hon’ble Supreme Court hence they automatically become entitled for the revised pay in pursuance to the ORSP Rules, 2008. 7. But when the notices were issued to the authorities on 15.01.2013, directed to obtain instruction in the matter positively by the next date, the matter was fixed on 11.02.2013 the authorities have come out with a communication bearing No.8005 dated 25.07.2013 by which direction has been passed to recover the amount alleged to have been paid excess from 1.1.1996 to 12.11.2006 being in violation of “FRBM Act” since there is no approval of the Finance Department and in pursuance to the same a fresh office order was issued on 1.8.2013 disclosing the name of the employees from whom the amount is to be recovered which is annexed as Annexure-15. Hence the petitioners have challenged the said orders (Annexure-14 and 15) by filing a misc. petition seeking permission of this Court for making necessary amendment in this writ petition which was allowed on 7.8.2013, the interim order of stay of recovery was passed. 8. Hence the petitioners have challenged the said orders (Annexure-14 and 15) by filing a misc. petition seeking permission of this Court for making necessary amendment in this writ petition which was allowed on 7.8.2013, the interim order of stay of recovery was passed. 8. Grievance of the petitioner is that when they have been given the benefit of minimum of pay scale in pursuance to the order passed by the Hon’ble Supreme Court and after taking into consideration, the Division Bench of this Court which has passed in W.P.(C) No.3912 of 2007 and 3962 of 2007, the benefit of minimum of pay scale has been extended after taking due approval from the Finance Department the same cannot be recalled in the garb of having no concurrence by the Finance Department because when the Division Bench of this Court has passed an order after full contest case, the State Government of Odisha has also contested at length as would be evident from the order passed in W.P.(C) No.3962 of 2007 (Annexure-5) then it cannot be recalled even though there is no approval of the Finance Department. Moreover, the benefit of minimum of pay scale has been extended in favour of the petitioners as would be evident from the communication dated 29.07.2009 (Annexure-6) in which there is clear cut stipulation that the decision of the authority for extending the benefit of minimum of pay scale has been restored to be paid in pursuance to ORSP Rules, 1998 plus 41% D.A. having concurrence of the Finance Department as contained in UOR No.195/CS-I dated 09.06.2009. 9. Further grievance of the petitioner is that other similarly situated whose decision has been modified by the Hon’ble Supreme Court in the case of C.A. No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy & others he has already been extended the benefit after concurrence of the Finance Department. 9. Further grievance of the petitioner is that other similarly situated whose decision has been modified by the Hon’ble Supreme Court in the case of C.A. No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy & others he has already been extended the benefit after concurrence of the Finance Department. Hence it cannot be said there is no concurrence of Finance Department over the issue and it is immaterial that even though there is no concurrence of Finance Department regarding claim of the petitioner after the benefit has been extended in favour of one similarly situated employee after approval of the Finance Department as being reflected in Annexure-6 dated 29.07.2009 then the petitioner is entitled to be given the said benefit irrespective of absence of concurrence of Finance Department because the benefit has been extended to the petitioner in terms of the order passed by the Division Bench of this Court in W.P.(C) No.3962 of 2007 and W.P.(C) No.3912 of 2007 which was never been challenged hence attained finality, thereafter it has also been implemented fairly for a long period i.e., from the month of July, 2009 till the issuance of Annexure-14 i.e., to 25.07.2013. 10. Further contention of the learned counsel for the petitioners is that the moment ORSP Rules, 2008 has come into existence they are automatically entitled to get the benefit of corresponding revised pay scale in terms of the ORSP Rules, 2008 but the authorities have not extended the said benefit although ORSP Rules, 2008 has come into effect w.e.f. 1.1.2006 and when it was not implemented, the petitioner has approached this Court, during pendency of the writ petition the authorities without asking any reply in this regard has passed Annexure-14 and 15 that too after issuance of notice for filing counter affidavit not only this the authorities have said in Annexure-14 that recovered the entire amount before preparation of parawise comments to be filed in W.P.(C) 17405 of 2012 (instant writ petition). This shows arbitrary action of the authorities, they have taken decision contrary to the order passed by the Hon’ble Supreme Court and this Court. 11. Further grievance of the petitioners is that they are also to be given enhanced rate of D.A. as admissible to the regular employee both in view of ORSP Rules, 1998 and 2008. In this case no counter affidavit has been filed. 11. Further grievance of the petitioners is that they are also to be given enhanced rate of D.A. as admissible to the regular employee both in view of ORSP Rules, 1998 and 2008. In this case no counter affidavit has been filed. However, adjournment has been sought for by the learned counsel for the State for filing counter affidavit which has vehemently been opposed by the learned counsel for the petitioner on the ground that the petitioners are DLR employees and due to arbitrary action of the authorities the petitioners are not being paid minimum of pay scale. Moreover, the order has been passed for recovery of benefit even without any notice and the authorities intentionally are not filing counter affidavit. 12. After hearing the learned counsel for the parties, the writ petition has been filed on 14.09.2012 for extending the benefit of minimum of pay scale on the basis of ORSP Rules, 2008, the matter has been heard on 15.01.2013, notices have been issued, duly been served, which has been received by the opposite parties as would be evident from the office note dated 22.01.2013. 13. It further appears from the order impugned dated 25.07.2013 that the authorities have directed recovery of the benefit of minimum of pay scale already extended to the petitioners be recovered, this exercise must be completed before submitting parawise comments in this case which has been challenged by filing miscellaneous petition for amendment of the writ petition which was allowed vide order dated 7.8.2013 but even thereafter no counter has been filed for more than 2 years. 14. This Court cannot wait indefinitely for counter affidavit. Since it has not been filed fairly for a long period as such prayer of the learned counsel for the State seeking adjournment for filing counter affidavit is being refused and in absence of counter affidavit the matter is being decided on the basis of material available on record. 15. Learned counsel for the State however has argued the case at length and submitted that the petitioners are DLR workers, they cannot be compared with the regular employees so they cannot be given the salary at par with the regular employee because of their nature of employment and they have been paid money from the contingencies. 15. Learned counsel for the State however has argued the case at length and submitted that the petitioners are DLR workers, they cannot be compared with the regular employees so they cannot be given the salary at par with the regular employee because of their nature of employment and they have been paid money from the contingencies. So in view of the ORSP Rules, 2008 it cannot be given to the persons who are being paid their salaries from the contingencies. Further arguments of learned counsel for the State that it is settled fact where there is any financial implication the concurrence of Finance Department is necessary but regarding the case of the petitioner there was no concurrence of the Finance Department hence a conscious decision was taken by the authority for recovery of the amount which will be said to be illegally been paid without any concurrence of the Finance Department. Further argument has been advanced by the learned counsel for the State that so far as claim of the petitioner regarding D.A., the Government has taken thoughtful decision by extending 41% D.A. Further the petitioners cannot be given the benefit of ORSP Rules, 2008 merely on account of the fact they are being paid their salary from the contingencies, the benefit of extended D.A. cannot be given to the petitioners since it is discretion of the Government to give D.A. to the extent which the Government will take decision. 16. Heard learned counsels for the parties and perused the documents on record. 17. The sole question which fell for consideration before this Court in this case is as follows:- (i) As to whether the order as contained in Annexure-14 and 15 is justified ? (ii) As to whether the petitioner are entitled to be given the benefit of replacement of scale of minimum of pay scale by virtue of ORSP Rules, 2008 ? (iii) Whether the petitioner are entitled to get extending benefit of D.A. from 41% onwards ? 18. So far as point (i) is concerned, to decide this issue it is relevant to go through the facts of the case as has been narrated hereinabove. The petitioner is admittedly DLR employees working under the works Department of the State of Orissa. (iii) Whether the petitioner are entitled to get extending benefit of D.A. from 41% onwards ? 18. So far as point (i) is concerned, to decide this issue it is relevant to go through the facts of the case as has been narrated hereinabove. The petitioner is admittedly DLR employees working under the works Department of the State of Orissa. The petitioners have not been regularized or not taken into work charged establishment but claimed to have been entitled for at least minimum of pay scale on the ground of other similarly situated employees like one Upal Krishna Reddy and others who were NMR employees in the Works Department were denied their regularization, had approached this Court vide OJC Nos. OJC No.4131, 4132 of 1989 and OJC No.1633 of 1989 in whose favour this Court had passed the following order:- “xxxxxx In the result, the prayer for regularization is allowed qua petitioner nos,28 and 29 (they being the two senior most of the six tracers before the Court. We have allowed the prayer of two, as two posts of tracers are available from the general category.) 33 and 34 (they being typists/clerks) and 12 and 54 (they being watchman). (We have taken these numbers from the memo filed by Shri Misra on 16.11.1992.) The prayer for wages equal to those of their counterparts in regular employment is, however, allowed qua all the petitioners with the observation that this would be made available from today.” The said order was challenged by the State of Orissa before the Hon,ble Supreme Court being C.A. No.2541-42 of 1994 and the Hon’ble Supreme Court has pleased to pass the following order:- “Heard Parties. The only thing that needs to be clarified is that the respondents/Workmen who were directed to be paid the same wages as the regular employees would be placed only on the minimum of pay scales, which is prescribed for the regular employees belonging to the same categories. The impugned order of the High Court is modified accordingly and the appeal is allowed to the above extent. There will be no order as to costs.” 19. Thereafter Mr. The impugned order of the High Court is modified accordingly and the appeal is allowed to the above extent. There will be no order as to costs.” 19. Thereafter Mr. Upal Krishna Reddy & others had been extended the benefit of minimum of pay scale vide Government Order dated 28.10.1995 after taking concurrence from the Finance Department along with D.A. admissible to the regular employees and accordingly when the grievance of the petitioners were not redressed they having no option had approached this Court vide W.P.(C) No.3962 of 2007 and one of the employee namely Md. Zamilur Rahaman–the petitioner in W.P.(C) No.3912 of 2007, both the writ petitions were disposed of on 29.07.2008 in which decision of the Government dated 9.3.2007 was under challenge in which the claim of the petitioner for entitlement of minimum of pay scale was rejected but this Court after taking into consideration the order passed by the Hon’ble Supreme Court in C.A. No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy & others has quashed Annexure-7. 20. After quashing of Annexure-7 Md. Zamilur Rahaman and others including the petitioners have been given the benefit of minimum of pay scale by restoring the letter dated 13.11.2006 (Annexure-3) by which DLR/NMR employees were allowed to pay minimum of pay scale in terms of ORSP Rules, 1998, they have continued to be paid the minimum of pay scale along with D.A. as per the ORSP Rules, 1998. 21. It further appears from the communication dated 09.03.2007 (Annexure-4) that the Finance Department has given concurrence vide their UOR No.463-CS-I dated 9.10.2006 to release the minimum of pay scale as being paid to the similarly situated NMR/DLR employees in GED as per its Department letter No.19754 dated 13.11.2006 but the same has been stopped which was challenged by vide W.P.(C) No.3912 and 3962 of 2007 and quashed, thereafter the same was restored vide order dated 29.07.2009 (Annexure-6). Thus it is evident from the record and the Annexures issued by the competent authorities that the order passed by the Division Bench of this Court regarding extending the benefit of minimum of pay scale has been implemented not only minimum of pay scale but D.A. has been allowed to be paid. Thus it is evident from the record and the Annexures issued by the competent authorities that the order passed by the Division Bench of this Court regarding extending the benefit of minimum of pay scale has been implemented not only minimum of pay scale but D.A. has been allowed to be paid. It is also evident from the fact that since the competent authority have not challenged the order passed by this Court in W.P.(C) No. 3912 and 3962 of 2007, rather given effect to the implied meaning of which is that the order passed by this Court has attained its finality. Reference in this regard may be made to the views of Hon’ble Supreme Court rendered in the case of Hope Plantations Ltd. vrs. Taluk Land Board, Peermade and another reported in (1999) 5 SCC 590 wherein at paragraph-26 it has been held that:- “26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppels though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again in the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are “cause of action estoppel” and “issue estoppel”. These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppels. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppels and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice.” Further reference in this regard may be made to the views of Hon’ble Supreme Court in the case of Union of India vrs. K.M. Shankarappa reported in (2001) 1 SCC 582 , wherein at paragraph-7 it has been held that:- “7. xxxx The executive has to obey judicial orders. Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The legislature may, in certain cases, overrule or nullify a judicial or executive decision by enacting an appropriate legislation however, without enacting an appropriate legislation, the executive cannot sit in an appeal or review or revise a judicial order.” 22. So the Government cannot recall it as has been recalled vide Annexure-14 dated 25.07.2013 that too on the ground that there is no concurrence from the Finance Department. 23. The ground taken in the decision dated 25.07.2013 that there is no concurrence of Finance department which seems not to be justified and absolutely incorrect since there is concurrence of Finance Department as would be evident from the communication dated 29.07.2009 (Annexure-6) while restoring the benefit in favour of the DLR employees and decided to pay the minimum of pay scale in terms of the letter No.19754 dated 13.11.2006. 24. While implementing the order passed by this Court in W.P.(C) No.3912 and 3962 of 2007, concurrence of the Finance Department was obtained under UOR No.195/CS-I dated 9.6.2009. Thus, the ground taken in recalling the benefit of minimum of pay scale vide Annexure-14 dated 25.07.2013 is absolutely improper and non application of mind. 25. 24. While implementing the order passed by this Court in W.P.(C) No.3912 and 3962 of 2007, concurrence of the Finance Department was obtained under UOR No.195/CS-I dated 9.6.2009. Thus, the ground taken in recalling the benefit of minimum of pay scale vide Annexure-14 dated 25.07.2013 is absolutely improper and non application of mind. 25. Moreover, even assuming that there is no concurrence of Finance Department it cannot be recalled on the garb of no concurrence of Finance Department on account of the fact that the benefit of minimum of pay scale has been restored by the authorities in pursuance to the order passed by Division Bench of this Court in W.P.(C) No.3912 of 2007. 26. After considering the counter affidavit filed on behalf of the Executive Engineer, Khurda (R & B) Division as well as the opposite party nos.1 to 4 and the opposite party no.2 was the Principal Secretary of the Finance Department of the Government of Orissa as would be evident from Annexure-5 to the writ petition. 27. Even there was no concurrence of the Finance Dept. then this should have been raised before this Court at the time of adjudication of the issue in W.P.(C) Nos.3962 of 2007 and 3912 of 2007 but this has not been raised rather submission has been made that there is concurrence of the Finance Department for the implementation of the order passed by the Hon’ble Supreme Court in the case of Upal Krishna Reddy. 28. Further from perusal of Annexure-14 it is evident that the decision of the authority is counter blast to the action of the petitioners who have approached this Court for redressal of their grievance for extending the benefit of ORSP Rules, 2008 because the authorities in a specific word in Annexure-14 has communicated which is being quoted herein below:- “xxx Your are, therefore, requested to take expeditious steps to recover the said arrear dues from the erring officials prior to recasting and resubmission of the P.W.C. in the W.P.(C) No.17405 of 2012 (instant writ petition) filed by Gagan Bihari Bhanja to this Department and also submit the names of the erring officials to this Department. Any deviation in the instruction of this Department will be viewed seriously.” These words clearly suggests that the authorities without any application of mind and only in arbitrary exercise of power has passed Annexure-14 dated 25.07.2013. Any deviation in the instruction of this Department will be viewed seriously.” These words clearly suggests that the authorities without any application of mind and only in arbitrary exercise of power has passed Annexure-14 dated 25.07.2013. This can also be gathered from the fact that the petitioners have been given the benefit of minimum of pay scale when approached this Court altogether for different reliefs, when benefit already granted was recalled but before recalling the benefit and before its recovery no opportunity of being heard was given to the petitioners. This also shows arbitrary action of the authorities. 29. In view of foregoing reasons stated herein above, Annexure-14 is not sustainable in the eye of law as such is hereby quashed in consequence thereof Annexure-15 is also quashed. 30. So far as point (ii) is concerned, learned counsel for the petitioners has argued that the petitioners since been allowed minimum of pay scale by virtue of order passed by this Court based upon the order passed by Hon’ble Supreme Court and accordingly minimum of pay scale was allowed to the petitioners on the basis of the resolution of ORSP Rules, 1998, the minimum of pay scale was revised by virtue of ORSP Rules, 2008 implemented w.e.f. 1.1.2006, the petitioners are entitled to be given enhanced revised minimum of pay scale since there is no existence of pay scale as per the resolution of ORSP rules, 1998. 31. While on the other hand, learned counsel for the opposite parties has argued that claim of the petitioners for minimum of pay scale as per the ORSP rules, 2008 cannot be extended because of the reason that ORSP rules, 2008 has been enshrined under Article 309 of the Constitution of India according to which Rules, 2008 has been made but not applicable for the work charged employees, the employees who are being paid out of contingencies and not on regular establishment. Since the petitioners are not in the regular establishment hence service conditions as contained in ORSP Rules, 2008 will not be applicable. Further the petitioner since claiming minimum of pay scale which is also a service condition hence they are not entitled for minimum of pay scale being not covered under ORSP rules, 2008. 32. Since the petitioners are not in the regular establishment hence service conditions as contained in ORSP Rules, 2008 will not be applicable. Further the petitioner since claiming minimum of pay scale which is also a service condition hence they are not entitled for minimum of pay scale being not covered under ORSP rules, 2008. 32. In order to appreciate the arguments advanced on behalf of the parties, it is relevant to go through the resolution of the ORSP rules 1998, ORSP rules 2008 and provision of Article 309 of the Constitution of India. 33. After coming into effect of the 5th Pay Revision Commission by the Central Government, the State Government has implemented the benefit by virtue of the resolution of the ORSP rules, 1998 implemented w.e.f. 1.1.1996 which provides under Clause Nos.3, 4 and 5 which is being reproduced herein below:- “3. Having regard to the recommendation of the Fitment Committee, demands of various service associations/organizations and after careful consideration of all aspects of related issues including the scales of pay prevalent in the Central Government and many other States in India, the State Government have been pleased to revise the scales of pay related to All India Consumer Price Index 1510 (12 monthly average-base, 1960=100) as indicated in Annexure-I in place of the existing scales of pay. These revised scales of pay are also relatable to All India Consumer Price Index 306 (12 monthly average –base, 1982=100) and shall apply to all persons in whole-time employment in Government except those who are governed by Orissa Revised Scales of Pay (College Teachers) Rules, 1989 and Orissa Superior Judicial Service (SB) Rules, 1963. These revised scales of pay shall also not apply to; (i) Persons not in whole-time employment. (ii) Persons paid out of contingencies. (iii) Persons paid otherwise than on monthly basis and persons paid on piece rate basis. (iv) Persons paid on contract except where contract provides otherwise. (v) Persons re-employed in Govt. service after retirement. (vi) Persons not drawing in regular scales of pay for whom no revised scales of pay are prescribed. 4. Minimum Pay :- Effective from 1.1.1996 the minimum pay of the lowest grade employees relatable to All India Consumer Price Index 1510 (12 monthly average, base 1960=100) which also corresponds to All India Consumer Price Index 306 (12 monthly average, base 1982=100) 5. 4. Minimum Pay :- Effective from 1.1.1996 the minimum pay of the lowest grade employees relatable to All India Consumer Price Index 1510 (12 monthly average, base 1960=100) which also corresponds to All India Consumer Price Index 306 (12 monthly average, base 1982=100) 5. Date of effect of revised pay scale: The revised scales of pay shall be effective from 1st January, 1996. ORSP rules, 2008 after coming into effect 6th Pay Revision Commission, same has been implemented by the State Government in exercise of power conferred under proviso of Article 309 of the Constitution of India which is being reproduced herein below:- 1. Short title and commencement (1) These rules may be called the Orissa Revised Scales of Pay Rules, 2008. (2) They shall be deemed to have come into force on the 1st day of January, 2006. 2. Application (1) Save as otherwise provided by or under these rules, these rules shall apply to all persons in whole time employment of Government. (2) These rules shall not apply to- (i) Persons engaged by Government on contract basis except when the contract provides otherwise; (ii) Persons re-employed in Government service after retirement; (iii) Persons paid out of contingencies; (iv) Persons paid otherwise than on a monthly basis including those paid only on piece-rate basis; (v) Persons not drawing pay in regular scales of pay for whom no revised scales of pay are prescribed; (vi) Employees borne in the “Work-charged Establishment” as defined in the Resolution of Government in the erstwhile Political and Services Department No.9488 dated the 18th June 1974, and (viii) persons not in whole time employment under Government of Orissa. 3. 3. Definitions- 3.(2) (i) “existing emoluments” means the sum of existing basic pay, existing dearness pay appropriate to the basic pay and dearness allowance appropriate to the basic pay + dearness pay at Index average 536 (1982=100)” “Article 309:- Recruitment and conditions of service of persons serving the Union or a State- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such persons as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.” From perusal of the resolution, 1998 it is evident that same is a resolution implementing the recommendation of 5th Pay Revision Commission and directed not to be given to the persons not in whole-time employment, persons paid out of contingencies and persons not drawing in regular scales of pay for whom no revised scales of pay are prescribed. Likewise in ORSP rules, 2008 it has been provided regarding non-applicable to such employees who are Persons engaged by Government on contract basis except when the contract provides otherwise, Persons re-employed in Government service after retirement, Persons paid out of contingencies, Persons paid otherwise than on a monthly basis including those paid only on piece-rate basis, Persons not drawing pay in regular scales of pay for whom no revised scales of pay are prescribed, Employees borne in the “Work-charged Establishment” as defined in the Resolution of Government in the erstwhile Political and Services Department No.9488 dated the 18th June 1974 and persons not in whole time employment under Government of Orissa. Proviso of Article 309 provides conferring power upon the Centre or the State Government to formulate rules regulating the service conditions. 35. Proviso of Article 309 provides conferring power upon the Centre or the State Government to formulate rules regulating the service conditions. 35. The argument has been advanced on behalf of the State is that since the minimum of pay scale being service conditions cannot be extended to the petitioners in view of provision of ORSP rules, 2008 having been enshrined under Article 309 of the Constitution of India because the petitioners are not in regular establishment, they are being paid out of contingencies, are not drawing pay in regular scales of pay for them no revised scales of pay are prescribed. 36. These arguments can be said to be correct only if the minimum of pay scale will be a service conditions as per the provision of ORSP rules, 2008 otherwise not. Hence, now question is whether minimum of pay scale is a service conditions ? 37. Minimum of pay scale is a concept not provided in Orissa Service Code or any service code applicable to any Central or State Government employees. This benefit has come only upon the direction of the Hon’ble Supreme Court. The reason is that if an establishment is in need of work of workers but due to financial restraint cannot be regularized on regular basis, in the establishment they have rendered their services for its smooth functioning and the workers continue the work in anticipation of regularization. In that anticipation they continue years together, but when not regularized they moved to Court of law and Hon’ble Supreme Court although deprecated regularization but in order to avoid unfair labour practice and to follow the rule of equal pay for equal work has directed the authority to pay minimum of pay scale at par with the regular employees of the cadre which will be a minimum of entry scale i.e., for example an employee’s pay scale in Rs.4000-7440/-, so the minimum of pay scale will be Rs.4000/-. 38. Further Hon’ble Supreme Court in C.A. No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy & others the wherein following direction has been passed:- “Heard parties. The only thing that needs to be clarified is that respondents/workmen who were directed to be paid the same wages as the regular employees would be placed only on the minimum of pay scales, which is prescribed for the regular employees belonging to the same categories. Upal Krishna Reddy & others the wherein following direction has been passed:- “Heard parties. The only thing that needs to be clarified is that respondents/workmen who were directed to be paid the same wages as the regular employees would be placed only on the minimum of pay scales, which is prescribed for the regular employees belonging to the same categories. The impugned order of the High Court is modified accordingly and the appeal is allowed to the above extent. There will be no order as to costs.” Even by constitution Bench of Hon’ble Supreme Court in the case of Secretary, State of Karnataka and others vrs. Umadevi (3) and others reported in (2006) 4 SCC 1 wherein their lordships has approved the concept of minimum of pay scale to be paid at par with the regular employee of the cadre minus increment and other allowances wherein at para-55 needs to be referred. “55. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of judgment of the Division Bench of the High Court. Since, they are only daily-wage earners, there would be no question of other allowances being paid to them.” In the case of State of U.P. and others vrs. Puttilal reported in (2006) 9 SCC 337 wherein their lordships has been held at paragraph-5 needs to be referred:- ”5. In several cases this Court applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to any increment or nay other allowance that is permissible to his counterpart in the Government. In several cases this Court applying the principle of equal pay for equal work has held that a daily-wager, if he is discharging the similar duties as those in the regular employment of the Government, should at least be entitled to any increment or nay other allowance that is permissible to his counterpart in the Government. In our opinion that would be the correct position and we, therefore, direct that these daily-wagers would be entitled to draw at the minimum of the pay scale being received by their counterparts in the Government and would not be entitled to any other allowances or increment so long as they continue as daily-wagers.” Minimum of pay scale has been directed to be paid by virtue of Hon’ble Supreme Court on the principle of equal pay for equal work but not entitling the daily rated employee for all the benefits which are being paid to the employees of regular establishment due to different nature of employment and differences in mode of engagement but simultaneously Hon’ble Supreme Court has taken into consideration and for avoiding unfair labour practice on the ground that since daily rated employee are working same nature of employment they at least be entitled for minimum of pay scale. 39. Hence minimum of pay scale is not a service conditions since not provided in Orissa Service Code or even in the ORSP rules, 2008. 40. When minimum of pay scale is not a service condition rather by virtue of order passed by Hon’ble Supreme Court in C.A. Nos.2541-42 of 1994, this Court has passed order in W.P.(C) Nos.3912 of 2007 and 3962 of 2007. Hence arguments of the learned counsel for the opposite parties cannot be said to be correct. 41. Now regarding entitlement of the petitioner for minimum of pay scale on the basis of Rules, 2008, there is no dispute that the petitioners have been given minimum of pay scale by virtue of order dated 13.11.2006 as contained in Annexure-3 when it was recalled vide order dated 9.3.2007, the petitioners have filed writ petition being in W.P.(C) Nos.3912 and 3962 of 2007 wherein this Court after taking into consideration the order passed in CA No.2541-42 of 1994 by Hon’ble Supreme Court has allowed the writ petition quashed Annexure-7 i.e., the order dated 9.3.2007. 42. 42. Thereafter, the authorities had restored the benefit of minimum of pay scale with the approval of the Finance Department dated 9.6.2009 as contained in UOR No.195/CS-I (Annexure-6). At that time pay scale was governed by ORSP rules, 1998 i.e., the period of 5th Pay Revision Commission operative from 1.1.1996 hence while restoring the benefit vide order dated 29.07.2009, benefit of minimum of pay scale as per resolution of ORSP rules, 1998 was allowed to be given to the petitioners. 43. Thereafter recommendation of 6th Pay Revision Commission has come into force which has been implemented by the State Government by virtue of ORSP rules, 2008 implemented w.e.f. 1.1.2006 replacing earlier pay scale prescribed by virtue of ORSP rules, 1998. 44. It is settled that an employee will be paid salary in a pay scale as provided and adopted by the State Government. In pursuance to the same, the petitioners being DLR employees were allowed minimum of pay scale at par with the regular employee in pursuance to ORSP Rules, 1998. 45. ORSP rules, 2008 has come to effect w.e.f. 1.1.2006 i.e., the date of 6th Pay Revision Commission has adopted and it was implemented by the State Government by communicating and formulating ORSP rules, 2008 under the proviso of Article 309 of the Constitution of India. 46. There should not be any confusion that the moment replacement scale comes by virtue of revision in pay scale, employees concerned will automatically been sent to the corresponding pay scale. 47. Here, the petitioners being DLR employees were being paid wages equal to the salary at the lower grade of employees of their own cadre and the moment pay scale has been revised and given effect to, the petitioners will automatically comes replacement scale although at its minimum. This can be demonstrated by an example. Suppose an employee was having pay scale Rs.4500-125-7000 and was getting said pay scale the moment it has been revised by virtue of ORSP rules, 2008 to the pay scale of Rs.5200-20200 he will automatically go to the corresponding scale from Rs.4500-125-7000 to Rs.5200-20200. 48. This can be demonstrated by an example. Suppose an employee was having pay scale Rs.4500-125-7000 and was getting said pay scale the moment it has been revised by virtue of ORSP rules, 2008 to the pay scale of Rs.5200-20200 he will automatically go to the corresponding scale from Rs.4500-125-7000 to Rs.5200-20200. 48. Here in this case the petitioners have been directed to be paid minimum of pay scale by virtue of order passed by this Court which has been paid on the basis of the resolution 1998 then the recommendation of 6th Pay Revision Commission has been adopted and the pay scale has been revised, enhanced, concerned employee will automatically will go on enhanced revised pay scale w.e.f. 1.1.2006. 49. It is settled that no salary can be given in absence of a pay scale since there is no existence of pay scale on the basis of resolution of ORSP rules, 1998 rather the same has been replaced by ORSP rules, 2008, the petitioners being DLR employees will be entitled to the replacement pay scale to the minimum of level w.e.f. 1.1.2006. Accordingly this point has been answered in favour of the petitioners. Accordingly, it is held that the petitioners are entitled for replacement by virtue of ORSP rules, 2008 implemented w.e.f. 1.1.2006 in consequence thereof, the petitioners are entitled for arrears differences from 1.1.2006 till the date of taking under the work charged establishment. Hence, the authorities are directed to release the amount within sixteen weeks from the date of receipt of certified copy of this order. 50. So far as point (iii) is concerned i.e., prayer for enhanced D.A. from 41% on the basis of ORSP rules, 2008 to be given at par with the regular Government employee. In this regard, Hon’ble Supreme Court has been held that the DLR employees will be paid minimum of pay scale at par with the regular Government employee of the cadre minus increment in the case of Secretary, State of Karnataka vrs. Umadevi (3) and others. 51. It is settled that determination of D.A. depends upon the Price Index and rate of inflation to meet out the inflationary rate as would be evident from the definition of “Dearness Allowance” means that “D.A. is a cost of living adjustment allowance paid to the Government employees as per the rate of inflation”. 52. Umadevi (3) and others. 51. It is settled that determination of D.A. depends upon the Price Index and rate of inflation to meet out the inflationary rate as would be evident from the definition of “Dearness Allowance” means that “D.A. is a cost of living adjustment allowance paid to the Government employees as per the rate of inflation”. 52. The State Government in this case has taken decision admitting to pay D.A. @ 41% which suggests that the State Government has taken decision to pay minimum of pay scale along with D.A. @ 41% on the basis of order passed by Hon’ble Supreme Court in the case of Upal Krishna Reddy as would be evident from Annexure-1 dated 28.10.1995 wherein it has been stated the relevant part is being quoted herein below:- “Further, it is also clarified that as per the judgment of the Hon’ble Supreme Court of India passed in the Civil Appeal No.2541-42 of 1994 in the case of State of Orissa & others vrs. Upal Krishna Reddy and others in regard to payment of D.A. the casual workers (D.L.Rs) involved in the above mentioned cases are entitled to get D.A. only.” 53. Thus, decision has been taken by the authority to enable the petitioner to be entitled to get D.A. @ 41%, so only question is what would be the quantum of D.A. to be paid to the petitioners since D.A. depends upon price index hence it would be proper to direct the authorities to determine the present percentage of D.A. on the basis of price index prevailing on the date. 54. Hence, the matter is remitted before the authority to take decision in this regard within reasonable period preferably within sixteen weeks from the date of receipt of certified copy of this order. On the basis of observation made hereinabove, all the writ petitions are disposed of. Petition disposed of.