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2017 DIGILAW 571 (ORI)

Abdul Hamid Khan v. State of Odisha

2017-05-11

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. Challenge has been made to the Government order dated 30.12.2014 and the consequential order of the office of the High Court of Orissa dated 11.2.2015 for not allowing the petitioners to avail honorarium. FACTS 2. The factual matrix leading to this writ petition is that the petitioners are the drivers appointed in the High Court of Orissa (hereinafter called “the Court”). The State Government vide D.O. Letter No.2828 dated 16.2.1949 purportedly made revision of scale of pay of the staff of the Court at par with the employees of the corresponding ranks and cadres in the State Secretariat. Since the benefit under such letter was not extended after revision of scale of pay of the employees of the State, batch of writ petitions have been filed by the employees of the Court and time to time under different writ applications this Court allowed the prayer of the employees of the Court for equal treatment and equal scale of pay as available to their counterparts in the Orissa Secretariat. 3. Be it stated that out of 37 drivers, 8 posts are of Senior Drivers and 29 posts are of Drivers under the cadre of Drivers in the establishment of the Court and they have been continuing against the substantive posts on regular basis. It is alleged, inter alia, that Drivers of the Orissa Secretariat have been extended the benefits of Special Pay in lieu of their service during holidays and for their service beyond working hours. But same benefit was not extended to the Drivers of the Court by the opposite party Nos.1 and 2. So, on the request of the Drivers of the Court Hon’ble the Chief Justice recommended vide letter No.9401 dated 13.12.2010 to grant honorarium in favour of the Drivers including the petitioners vide Annexure-3. Despite the recommendation, the State Government did not take any action. So, all the Drivers including the petitioners filed W.P.(C) No.8881 of 2013 before the Court to sanction honorarium in their favour as per the recommendation of the Court along with creation of some promotional posts. 4. It is stated that this Court on 27.11.2013 passed the following order: “04. 27.11.2013 Heard Mr. G. Mishra, learned counsel for the petitioners and Mr. M.S. Sahoo, learned Additional Standing Counsel for the State-opposite parties. 2. 4. It is stated that this Court on 27.11.2013 passed the following order: “04. 27.11.2013 Heard Mr. G. Mishra, learned counsel for the petitioners and Mr. M.S. Sahoo, learned Additional Standing Counsel for the State-opposite parties. 2. Learned Additional Standing Counsel for the State is permitted to correct the spelling mistake occurred in the counter affidavit in Court today. 3. It is submitted by learned counsel for the petitioners that the petitioners have made two prayers. Prayer No.(i) is to direct the opposite parties to take steps for the creations of two promotional posts of Senior Driver and Garage Supervisor, vis-à-vis in so far as prayer no.(ii) is concerned, the claim of the petitioners are to sanction honorarium to the Drivers of the Orissa High Court as per the recommendation dated 13.12.2010 under Annexure-5. 4. In the counter affidavit of opposite party no.2- Registrar (Judicial) at paragraph-7 at page-5, the Special Officer (Special Cell), Orissa High Court, Cuttack has noted that the High Court has not received any reply from the Home Department in response to the Court’s letter No.9401 dated 13.12.2010 (Annexure-5). Therefore, Mr. Sahoo learned Additional Standing Counsel for the State is directed to obtain instruction from the Home Department and file counter affidavit with regard to the aforesaid reliefs sought for. The said affidavit be filed within three weeks. 5. List this matter four weeks after. A copy of this order be handed over to the learned Additional Standing Counsel.” Be it stated that in pursuance of the aforesaid direction the State Government allowed honorarium vide letter dated 30.12.2014 only in favour of the Drivers attached to the Hon’ble Chief Justice, Judges and Protocol duty vide Annexure-4. Basing on the letter of the State Government, opposite party No.3 issued letter dated 11.2.2015 which is allegedly unreasonable, arbitrary and discriminatory. The petitioners alleged that even if they have been attached to the Registry, are also discharging their duties beyond their office hours and also in holidays being directed to drive the vehicles of Hon’ble Judges in the event of emergency and when the concerned Drivers go on leave. So, it is not the case where the petitioners are segregated from other Drivers to have separate function creating a separate cadre. So, it is not the case where the petitioners are segregated from other Drivers to have separate function creating a separate cadre. Since the petitioners are discharging their duties on holidays and beyond office hours, there cannot be discrimination between the Drivers attached to the Hon’ble Chief Justice, Judges and Protocol duty and Drivers remaining on duty otherwise. So, this is a sheer discrimination made by the opposite party Nos.2 and 3. 5. It is also alleged, inter alia, that the petitioners- Drivers attached to Ambulance or office of the Registry are also discharging their duties beyond their normal office hours and are deprived of the benefits availed by their counterparts attached to the Judges of the Court. Since there is sheer discrimination in contravention of Articles 14 and 16 of the Constitution, the writ petition is filed challenging the order dated 30.12.2014 as illegal, improper and discriminatory by not extending Special Pay or honorarium to all Drivers including the petitioners. Similarly, the petitioners alleged that the order dated 11.2.2015 consequent to order dated 30.12.2014 passed by the opposite party No.3 should also be modified after the modification of the order dated 30.12.2014 passed by the State Government. 6. Per contra, the opposite party Nos.1 and 2 filed counter stating that for the case of the petitioners the letter dated 16.2.1949 has no relevance. Moreover, the case of the employees who have filed the cases earlier, namely, Bibhuti Bhusan Mishra and Bibhuti Bhusan Mohapatra are different. It is the case of these opposite parties that the Drivers of the Orissa Secretariat who are attached to the dignitaries like Hon’ble Ministers, Chief Secretary, Additional Chief Secretary, Principal Secretaries, Commissioner-cum-Secretaries and Special Secretaries of the Departments have been extended the benefit of Special Pay for their arduous nature of duties. But other Drivers though working during holidays and serving beyond office hours have not yet been extended the benefits of Special Pay. So, the State Government pursuant to the letter of the Court dated 13.12.2010 extended the benefits to those Drivers who are involved in their arduous nature of duties comparing the same with that of the State Government. 7. But other Drivers though working during holidays and serving beyond office hours have not yet been extended the benefits of Special Pay. So, the State Government pursuant to the letter of the Court dated 13.12.2010 extended the benefits to those Drivers who are involved in their arduous nature of duties comparing the same with that of the State Government. 7. Be it stated that in view of the order of the Court in W.P.(C) No.8881 of 2013 the Drivers officially attached to Hon’ble the Chief Justice, Hon’ble Judges of the Court and Protocol duty having been considered for their arduous nature of duties at par with the Drivers of the Orissa Secretariat, have been extended the benefit of honorarium in lieu of Special Pay. Since the present petitioners have no similar arduous nature of duties, they are not entitled to be compared with the Drivers who are doing arduous nature of duties in the High Court and also the nature of duties assigned to the above Drivers attached to the Ministers, Chief Secretary, Additional Chief Secretary, Principal Secretaries, Commissioner-cum-Secretaries and Special Secretaries of the Departments. 8. It is stated that even if the petitioners Drivers are doing duty by driving the vehicles of Hon’ble Chief Justice and Judges of the Court as an alternative arrangement for the time being made in the absence of regular Drivers attached to the Hon’ble Chief Justice and Hon’ble Judges, they cannot avail same benefit of honorarium in lieu of Special Pay because the nature of duty is not permanent and not arduous in nature. On the other hand, the State Government claimed that the impugned notification is neither illegal, nor arbitrary, nor does it amount to discrimination. So, they prayed to reject the writ petition. 9. Opposite party No.3 filed separate counter stating that they have simply issued the notification basing on the letter of the Government. On the other hand, it is admitted by the opposite party No.3 that the Drivers of the Court attached to the Officers of the Registry, Ambulance etc. are also discharging similar nature of duties beyond office hours, in holidays and vacations like the Drivers officially attached to the Hon’ble Chief Justice and Judges of the Court and the Protocol Section. Further, it is admitted by opposite party No.3 that the Drivers attached to the Hon’ble Judges or Protocol Section are not selected on the basis of seniority. are also discharging similar nature of duties beyond office hours, in holidays and vacations like the Drivers officially attached to the Hon’ble Chief Justice and Judges of the Court and the Protocol Section. Further, it is admitted by opposite party No.3 that the Drivers attached to the Hon’ble Judges or Protocol Section are not selected on the basis of seniority. However, it is stated, the relief asked for having no merit in the writ petition should be refused. SUBMISSION 10. Learned counsel for the petitioners submitted that the employees of the Orissa High Court being the members of the highest judicial forum of the State, the State Government has been extending the pay parity to the employees of this Court at par with the employees of the State Secretariat which is also the highest administrative wing of the State executive. He further submitted that for the same reason the State Government has accepted the advice of the Hon’ble Chief Justice of this Court made vide D.O. Letter No.2828 dated 16.2.1949. He further submitted that time and again the State Government has made scale of pay of the employees of this Court at par with the pay and allowance of the employees of the State Secretariat under different litigations, namely, Bibhuti Bhusan Mohapatra and others v. State of Orissa and others, reported in Vol.78 (1994) CLT 665 and in O.J.C. No.1406 of 1996 (Bibhuti Bhusan Mishra and others v. State of Orissa and others) and same view has been also upheld before the Hon’ble Supreme Court in Civil Appeal No.5074 of 2004. 11. Learned counsel for the petitioners further submitted that in W.P.(C) No.6464 of 2013: Orissa High Court Employees Association and others v. State of Orissa and others this Court have taken the same view for which in the present case the petitioners-Drivers of this Court cannot be denied parity with the Drivers of the State Secretariat. He further contended that although request was made by this Court in administrative side to sanction honorarium in favour of the petitioners-Drivers but the State Government only allowed the Drivers attached with the Hon’ble Chief Justice, other Judges of this Court and on protocol Section in pursuance of the order passed in W.P.(C) No.8881 of 2013. He further contended that although request was made by this Court in administrative side to sanction honorarium in favour of the petitioners-Drivers but the State Government only allowed the Drivers attached with the Hon’ble Chief Justice, other Judges of this Court and on protocol Section in pursuance of the order passed in W.P.(C) No.8881 of 2013. According to him there is sheer discrimination by the State Government by not giving the same benefit to the other Drivers and to the present petitioners and thus the impugned notification is clearly violative of Articles 14 and 16 of the Constitution of India. So, he submitted to direct opposite party Nos.1 and 3 to modify the said notification and extend the benefit of Special Pay/honorarium to all the Drivers of this Court including the petitioners and accordingly consequential service benefits be extended to the petitioners. 12. Learned Additional Government Advocate submitted that the letter of request of the Hon’ble Chief Justice of this Court sent in 1949 has been partially accepted by the State Government. The case of the present petitioners cannot be equated with the benefit accrued to other employees of the High Court as the benefit of pay at par with the State Government employees was extended under different writ applications. 13. Learned Additional Government Advocate further submitted that the Drivers attached to Hon’ble Chief Justice and other Judges have been extended the honorarium because of the arduous nature of work which is also equally performed by the Drivers attached to Ministers, Chief Secretary and other officials up to the rank of Special Secretary. Thus, the honorarium extended to the Drivers of the State Secretariat is also extended to the Drivers having arduous nature of work as per the impugned notification. He submitted that since the petitioners are in no way performing arduous nature of work, there cannot be discrimination between the present petitioners and other Drivers and rightly the impugned notification does not extend to the present petitioners. So, he submitted to reject the writ petition. 14. The main point for consideration:- (i) Whether the impugned notifications issued by the opposite parties are illegal and invalid being violative of Articles 14 and 16 of the Constitution of India ? DISCUSSION POINT NO. (i) : 15. It is admitted fact that the petitioners are working as Drivers in the High Court of Orissa. 14. The main point for consideration:- (i) Whether the impugned notifications issued by the opposite parties are illegal and invalid being violative of Articles 14 and 16 of the Constitution of India ? DISCUSSION POINT NO. (i) : 15. It is admitted fact that the petitioners are working as Drivers in the High Court of Orissa. It is admitted fact that there is a letter sent by Hon’ble the Chief Justice of this Court vide D.O. Letter No.2828 dated 16.2.1949 to the State Government regarding revision of pay scale of the staff of this Court at par with the employees of the corresponding ranks and cadres in the State Secretariat. It is not in dispute that under different litigations this Court has passed order to extend the benefits to the employees of this Court by granting Special Pay/honorarium at par with the identical employees of the State Government. It is also not in dispute that this Court has sent letter on 13.12.2010 intimating the recommendation of Hon’ble the Chief Justice of this Court to the State Government for grant of honorarium in favour of the petitioners-Drivers and others vide Annexure-3. 16. It is the case of the petitioners that since the State Government did not take any action on the letter dated 13.12.2010 of this Court, the petitioners filed W.P.(C) No.8881 of 2013 before this Court and this Court passed the above interim order dated 27.11.2013. From the order itself it transpires that it is an interim order and it is admitted fact that in pursuance of the order, the State Government allowed payment of honorarium in favour of the Drivers attached to the Hon’ble Chief Justice, other Judges and on protocol duty vide impugned notification dated 30.12.2014. The impugned Government order dated 30.12.2014 is placed below for reference: “Government of Odisha Home Department Home-IIC-SVOOND 0259/2014-__________Dated, Bhubaneswar file From Shri P.K. Rout, Deputy Secretary to Government To The Special Officer (Special Cell), Odisha High Court, Cuttack Sub:- Grant of honorarium to the Drivers of Orissa High Court, Cuttack in lieu of Special Pay for their arduous nature of duties. Sir, In inviting a reference to your letter dated 28.8.2011 on the above mentioned subject I am directed to say that, in pursuance of the order of Hon’ble Orissa High Court dated 27.11.2013 passed in W.P.(C) No.8881 of 2013 filed by Srikanta Kumar Sahoo and others-Vrs-State of Odisha and another, Government in Home Department have been pleased to sanction honorarium in favour of the drivers of Orissa High Court in lieu of Special Pay for their arduous nature of duties as a special case with the following terms and conditions:- (1) This shall be limited to one month’s basic pay (Pay+GP) (2) The Drivers Services can be utilized in Holidays (including Sunday and Second Saturday) and beyond Office hours, if necessary. (3) This honorarium shall be limited to the Drivers officially attached to the Hon’ble Chief Justice and Judges of Orissa High Court only. (4) The Drivers attached to protocol duty will avail the same subject to certification of his sufficient days of duty in Holidays by the Competent Authority. (5) If, there will be any absence of duty for more than 30(thirty) days in a Calendar year, then the honorarium should be proportioned to the completed duties of the number of months. (6) This honorarium shall not be treated as a precedence for other Drivers in future. This has been concurred in vide Finance Department UOR No.640/GS-I dated 22.11.2014. Yours faithfully Sd/-Deputy Secretary to Government Dated 30.12.14” 17. From the aforesaid notification it appears that honorarium has been allowed only to the Drivers officially attached to the Hon’ble Chief Justice and Judges of the Orissa High Court because of the nature of work which are arduous in nature. It is revealed from the writ petition that the petitioners are Drivers amongst entire cadre of Drivers in which there are 8 posts of Senior Drivers and 29 posts of Drivers. It is admitted by opposite party No.3 that the Drivers officially attached to Hon’ble Chief Justice, Hon’ble Judges and Protocol Section of the Court as the Drivers also attached to the Officers of the Registry and Ambulance of the Court. Moreover, the Drivers attached to the Officers of the Registry and Ambulance are also required to discharge the duties beyond the office hours and in holidays. Moreover, the Drivers attached to the Officers of the Registry and Ambulance are also required to discharge the duties beyond the office hours and in holidays. In the case of emergency also the Drivers from the Registry are called upon to discharge the duties of Drivers for the Judges of this Court. In view of clear admission of the opposite party No.3 who is the employer of the petitioners that all the Drivers of the High Court are equally discharging the same function as performed by them with reference to the Drivers attached to the Hon’ble Chief Justice and Judges of the Court, there is discrimination between the Drivers when some of them are paid honorarium and some are not paid. 18. Arduous nature of work relates to difficult or tiring work. Opposite party Nos.1 and 2 explained that the Drivers attached to the Ministers and Secretaries are performing arduous nature of work for which they are being paid the Special Pay or the honorarium as the case may be but not the rest of the Drivers in the State Secretariat. It is not clear from the counter that when the Driver of a Minister is not available, any other Driver performs his work being deputed from other Department like the Driver available in Registry performs the duty of Driver of a Judge to ply the vehicle at times. So, it cannot be said that the Drivers left out in the State Secretariat for not availing the Special Pay or honorarium can be equated with the petitioners- Drivers of the Court. When the State Government has allowed the Drivers of this Court attached to the Hon’ble Chief Justice and Judges of the Court to be at par with the Drivers attached to Ministers and Secretaries for the reason of their arduous nature of work performed in holidays and after office hours and the fact that all the Drivers of the Court are equal and also performing arduous nature of work, Clause (2) of the impugned notification dated 30.12.2014 is a clear discrimination between the Drivers of the Court. 19. In AIR 1955 SC 795 ; Shrikishan Singh v. State of Rajasthan it is observed that equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. 19. In AIR 1955 SC 795 ; Shrikishan Singh v. State of Rajasthan it is observed that equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. Implicit in the concept of equality is the concept that persons who are in fact unequally circumstanced cannot be treated on a par and equals cannot be treated as unequals as per the decision in the case of State of Punjab v. Balkaran Singh reported in AIR 2007 SC 641 . 20. With due regard to the said decisions of the Hon’ble Apex Court, in the instant case all the Drivers of the Court including the petitioners being equal, but treating the petitioners as unequals as per the impugned notification by not allowing honorarium to them, is sheer discrimination under Articles 14 read with Article 16 of the Constitution. The Point No.(i) is answered accordingly. CONCLUSION 21. In terms of the above discussion, we are of the view that Clause (3) and 4 of the notification dated 30.12.2014 vide Annexure-4 cannot be sustained in law being discriminatory in nature and they are liable to be deleted and the Court order so. We hereby further direct that the opposite party No.1 would issue revised notification by deleting Clauses (3) and (4) and in their place a single clause be placed by granting honorarium to the Drivers of the Court including petitioners who are being utilized for their services as per Clause (2) subject to certification by the competent authority. Consequent upon issuance of such modified notification, opposite party No.3 would issue revised notification accordingly by superseding Annexure-5. The entire exercise must be completed within a period of three months from the date of this judgment. The writ petition is disposed of accordingly.