Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1252 (ORI)

Upamanyu Rout v. State of Orissa

2017-11-03

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is for issuance of direction upon the opposite parties to allow the petitioner to draw remuneration at par with the counter parts continuing in other establishments on contract basis w.e.f. August, 2008 as also to extend the benefit in pay scale along with the differential arrear pay. 2. The grievance of the petitioner raised in the writ petition is that he was appointed as Laboratory Assistant way back w.e.f. 31.8.2000 on contract basis for a period of one year and subject to the condition of the contract, the petitioner still continuing in service. The petitioner is being paid the consolidated remuneration. Hence, he has raised grievance of disbursement of minimum pay scale applicable to the pay scale at par with the post which the petitioner is holding. This prayer, the petitioner is making on the basis of an instruction issued by the Chief Secretary, Orissa in Memo No.32986(255)F. dated 7.7.2008 wherein the meaning of consolidated remuneration has been defined by clarifying it to the amount equal to minimum of pay scale of the post which is being held by regular employees. The said memo has subsequently been modified by the Government vide instruction dated 22.12.2016 wherein a stipulation has been made that the principle of minimum of pay scale will not be applicable to such persons, who have engaged through outsourcing basis, but here in the instant case, the petitioner is not engaged under the principle of outsourcing basis rather, against the valid sanctioned post on contract basis. The petitioner has raised his grievance before the opposite parties, but they have not even followed the instruction issued by the Chief Secretary, Orissa. 3. According to the petitioner, the concept of minimum of pay scale has been evolved by the judicial pronouncements of Hon’ble the Supreme Court in order to save employees with the unfair labour practice. 4. Learned counsel for the petitioner has submitted that the petitioner has been appointed after following due procedure against the vacant post on contract basis, but on that ground he cannot be discriminated, so far it relates to financial benefit that too when the position has been certified by the Chief Secretary of the State. 5. 4. Learned counsel for the petitioner has submitted that the petitioner has been appointed after following due procedure against the vacant post on contract basis, but on that ground he cannot be discriminated, so far it relates to financial benefit that too when the position has been certified by the Chief Secretary of the State. 5. The State-opposite parties have been noticed, representing them by the learned Additional Government Advocate, has fairly submitted that the Chief Secretary, Orissa has issued an instruction to all Departments of Government, all Heads of Departments and all Collectors and as such, decision is to be taken by them on the basis of instruction issued. He has further submitted that the opposite party no.3-Institute of Textile Technology, Choudwar, Cuttack is under the Secretary to Government of Orissa in Department of Industries. Since the paying master is the opposite party no.3, he is the competent authority to take decision in this regard. He virtually has not disputed the case of the petitioner. The opposite parties no.2 and 3 have been represented by learned counsel, who has filed a detailed counter affidavit inter alia therein it has been stated that the services of the petitioner were not against the regular post abolished and as such, the minimum of pay scale is not admissible to him. According to them, the instruction of the Chief Secretary, Orissa is applicable to such employees, who has been appointed against the abolished post. But, here in the instant case, post upon which the petitioner is working, has not been abolished and as such, the Memo dated 7.7.2008 will not be applicable. 6. Heard the learned counsel for the parties and appreciated the arguments advanced on their behalf. 7. It is evident from the record that the petitioner has been appointed in pursuant to the notice inviting application as Laboratory Assistant on contractual basis for a period of one year on payment of consolidated pay of Rs.3,500/- vide order dated 31.8.2000. The petitioner has started discharging his duty in compliance of the said order. It is evident from the material available on record that the opposite party no.3-Institute of Textile Technology, Choudwar, Cuttack is directed under the control of Secretary to Government of Orissa in Department of Industries. 8. The petitioner has started discharging his duty in compliance of the said order. It is evident from the material available on record that the opposite party no.3-Institute of Textile Technology, Choudwar, Cuttack is directed under the control of Secretary to Government of Orissa in Department of Industries. 8. The petitioner claim is that to enhance his salary on the basis of principle of minimum of pay scale as because the petitioner has got appointment after following the due procedure of law against the valid post and continuing since the year 2000 regularly. Hence, justifying the consolidated remuneration is unfair labour practice and the same is contrary to the fact that there cannot be any discrimination of disbursement of salary amongst the employees, who are discharging similar nature of duty. The petitioner has further relied upon a memo issued by the Chief Secretary of Orissa dated 7.7.2008 addressed to all Departments of Government, all Heads of Department and all Collectors wherein a stipulation has been made to disburse the remuneration by way of fixed sum as consolidated remuneration and the consolidated remuneration has been defined as sum equivalent to the minimum pay scale admissible to the regular post against which such contractual engagement has been made on evaluation to said regular post. 9. Opposite party no.3 has objected the prayer of the petitioner on the ground that the petitioner since been appointed against the post which has not been abolished and as such, he cannot be allowed to be paid minimum of pay scale. 10. This Court, after appreciating the submission advanced on behalf of the parties, is of the considered view that the concept of minimum of pay scale has not been made under any of the service law rather, it is the judicial pronouncement to achieve the constitutional goal in order to deprive one section of the employee to that of the another. The principle has been laid by Hon’ble the Apex Court in the various pronouncements to at least make payment the minimum of pay scale so that the employees, who have been appointed on contract basis, cannot be subjected to unfair labour practice. This concept has also been taken note in the constitution Bench judgment of Hon’ble the Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) others, reported in (2006) 4 SCC 1 at paragraph 55. This concept has also been taken note in the constitution Bench judgment of Hon’ble the Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi (3) others, reported in (2006) 4 SCC 1 at paragraph 55. While dealing with the situation, the constitution Bench of Hon’ble the Supreme Court has been pleased to modify the order of the High Court wherein the direction has been issued to make payment of minimum of pay scale from the date of engagement, but that order has been modified to the extent to be paid the benefit of minimum of pay scale from the date of judgment rendered by the High Court and accordingly, the order has been modified. 11. The discussion made by Hon’ble the Supreme Court at paragraph-55 of the said judgment also goes to suggest that minimum of pay scale is to be paid to the ad hoc or the casual employees so long as they are not being regularized by taking them under the regular establishment. The purpose is to save unfair labor practice, since they are also discharging the similar nature of duty. 12. The Chief Secretary of Orissa, keeping this fact into consideration, has also taken a decision in the Memo dated 7.7.2008 wherein the direction has been issued to pay the minimum of pay scale, but there the stipulation has been made by giving that the benefit of the minimum pay scale is to be paid on evolution of said regular post. The question is that when the regular post will be abolished, then where is the question of making appointment on contractual basis and can after abolishing the regular post, the appointment made on contract basis be said to be an appointment against the sanctioned post. This stipulation is contrary to the proposition laid down by Hon’ble the Supreme Court in the case of Secretary, State of Karnataka and others (supra) because any appointment made not against the valid sanctioned post will be said to be illegal. Hence, the part of the memo by which it has been submitted that the benefit of minimum of pay scale is to be given in such a situation where the post upon such employees engaged is abolished is held to be illegal for the reason mentioned aforesaid. 13. Hence, the part of the memo by which it has been submitted that the benefit of minimum of pay scale is to be given in such a situation where the post upon such employees engaged is abolished is held to be illegal for the reason mentioned aforesaid. 13. In view of the discussion hereinabove and considering the fact that the petitioner has been appointed against the vacant sanction post, but on contract basis after following the due procedure of law and as such, he cannot be deprived from getting the minimum of pay scale. 14. In view thereof, the writ petition is disposed of directing the opposite party no.3-Institute of Textile Technology, Choudwar, Cuttack to take decision in the light of the observation mentioned hereinabove regarding the claim of the petitioner within period of six weeks from the date of receipt of certified copy of this order.