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2018 DIGILAW 20 (ORI)

Ramarani Mishra v. State of Odisha

2018-01-03

B.K.NAYAK, D.P.CHOUDHURY

body2018
JUDGMENT : D.P. Choudhury, J. This is a writ application filed by the petitioner, the beleaguered widow of late Bibhuti Bhusan Mishra, an erstwhile employee of Orissa High Court challenging the inaction of the opposite parties for non-payment of differential arrear salary and pension of her late husband. FACTS 2. The unfurled story of the petitioner is that the late husband of the petitioner joined in Orissa High Court as Lower Division Clerk on 17.3.1958 and promoted to the rank of Superintendent on 17.3.1981. Subsequently he was promoted to the rank of Additional Stamp Reporter and Oath Commissioner on 1.4.1990 and then again promoted to the post of Establishment Officer on 1.10.1990. Finally he was further promoted to the post of Assistant Registrar (Judicial) on 1.2.1992 and attained the age of superannuation on 31.1.1993. 3. The petitioner’s late husband along with two retired Assistant Registrars since not given the revised scale of pay as their counterparts at Secretariate, they had to file O.J.C. No.1406 of 1996 before this Court and the same was disposed of on 25.4.2001 with a direction to the State Government to refix the pay of the petitioners in the scale of pay of Rs.1975-2975/- with effect from 1.8.1986 as has been allowed to the counterparts working in the Secretariate and accordingly subsequent pay revision also should be allowed from the dates of their counterparts are getting in the State Secretariate. Similarly the order was passed to recalculate their arrears and for disbursement of same. 4. The State Government challenged the aforesaid order of this Court before the Hon’ble Apex Court and the Hon’ble Apex Court vide Civil Appeal No. 5074 of 2004 disposed of the matter upholding the order of this Court on 7.4.2011. After dismissal of S.L.P. the State Government allowed the arrear salary in the rank of Superintendent Level-I in the scale of pay of Rs.1975-2975/- with effect from 1.8.1986 to 17.10.1989. Although the late husband of the petitioner had been promoted to different posts as stated above but scale of pay of retired employee was neither revised nor re-fixed in spite of the order of this Court and the Hon’ble Apex Court in regard to the subsequent pay revisions in the promotional posts. 5. Although the late husband of the petitioner had been promoted to different posts as stated above but scale of pay of retired employee was neither revised nor re-fixed in spite of the order of this Court and the Hon’ble Apex Court in regard to the subsequent pay revisions in the promotional posts. 5. On 18.7.2012 petitioner made representation to Home Department for allowing the scale of pay of Rs.2200-4000/- and Rs.3000-4500/- with effect from 1.4.1990 to 1.12.1992 as per her husband’s promotion but opposite parties did not revise the scale of pay of her late husband. It is stated that the promotion although was given to the late husband of the petitioner from Superintendent Level-I to Stamp Reporter and Oath Commissioner, then to Establishment Officer but the scale of pay remained same with effect from 1.4.1989 up to 18.11.1993 which is illegal and arbitrary. It is also maintained inter alia that although the scale of pay of Stamp Reporter and Oath Commissioner and Establishment Officer of the High Court was revised to Rs.2200-4000/- with effect from 18.11.1993 and the Assistant Registrar (Judicial) in the scale of pay of Rs.3000-4500/- with effect from 18.11.1993 under the Orissa Revised Scales of Pay Rules, 1989 but the counterparts in the Secretariate received the said scale with effect from 1.5.1989. Not only the late husband of the petitioner suffered but also similar employees made discontentment about the deprivation of financial benefit with regard to the said post. So, this Court made correspondence with the Government seeking clarification from the State Government but that clarification nipped in the bud. Thus, without waiting for the reply the opposite party No.3-High Court has denied the claim of late husband of the petitioner only on the ground that by the time the letter of the Home Department received giving promotion to the respective posts with effect from 18.11.1993, by then the petitioner’s husband has already retired. So, the opposite party No.3-High Court rejected the claim of the petitioner arbitrarily and illegally. 6. So, the opposite party No.3-High Court rejected the claim of the petitioner arbitrarily and illegally. 6. The petitioner filed the present writ petition to quash the letter dated 2.11.2012 whereunder the claim of the petitioner has been rejected vide Annexure-7 with further prayer to issue direction to the opposite parties to refix the pay of the petitioner’s late husband in the rank of Additional Stamp Reporter and Oath Commissioner with effect from 1.4.1990 in the scale of pay of Rs.2200-4000/- and to the rank of Assistant Registrar in the scale of pay of Rs.3000-4500/- with effect from 18.11.1993 till the date of superannuation at par with the counterparts in the State Secretariate and accordingly revised the pension of late husband of the petitioner and Family Pension accordingly. SUBMISSIONS 7. Learned counsel for the petitioner submitted that late husband of the petitioner has been denied the natural justice having not equated the promotional post of her husband at par with the counterparts in the Secretariate. According to him, the revisional scale of pay as given to the State Secretariate employees with effect from 1.5.1989 should have been also made applicable to the case of the petitioner’s late husband. The High Court in earlier writ petition has categorically ordered for the revision of scale in the promotional post qua the employees of the State Secretariate. That view has been well upheld in the Supreme Court. But the opposite parties in sheer violation of the said order reached finality having not revised the salary in promotional posts and only paid the salary as he was receiving as Superintendent Level-II till his retirement as an Assistant Registrar of the Court. 8. Learned counsel for the petitioner further submitted that when an employee is promoted from one post to another, there must be financial upgradation to the promoted post but surprisingly in this case the late husband of the petitioner was promoted to different posts from time to time but on the same scale of pay which is illegal and improper. 9. Learned counsel for the petitioner further submitted that not only the husband of the petitioner but also similarly situated employees of this Court have not got the equal financial benefits under the ORSP Rules, 1989 at par with their counterparts in the Secretariate resulting violation of Articles 14 and 16 of the Constitution of India. 9. Learned counsel for the petitioner further submitted that not only the husband of the petitioner but also similarly situated employees of this Court have not got the equal financial benefits under the ORSP Rules, 1989 at par with their counterparts in the Secretariate resulting violation of Articles 14 and 16 of the Constitution of India. When there is violation of the constitutional provisions and the judgment of this Court duly upheld in the Hon’ble Supreme Court, the impugned order vide Annexure-7 should be quashed and consequential benefits may be provided to petitioner as her husband is no more after 2005. 10. Learned Additional Government Advocate supporting the counter submitted that there is no dispute about the facts as submitted by the learned counsel for the petitioner. Since there is direction of this Court in the earlier writ petition to refix the pay of the petitioner’s late husband in the scale of pay of Rs.1975-2975/- with effect from 1.8.1986 and allow the subsequent pay revisions from the dates of their counterparts in the State Secretariate and same judgment has been confirmed by the Hon’ble Supreme Court, same has been carried out and payment has been already made to the petitioner. There is no fault with the compliance of the judgment passed in O.J.C. No.1406 of 1996 and the judgment of the Hon’ble Apex Court. 11. Learned Additional Government Advocate further submitted that the post of Assistant Registrar (Judicial) was redesignated as Additional Deputy Registrar (J & E) and the scale of pay of the said post along with the posts of Establishment Officer, Stamp Reporter & Oath Commissioner and Additional Stamp Reporter & Oath Commissioner were revised from Rs.2000-3500/- to Rs.3000-4500/-, from Rs.2000-3500/- to Rs.2200-4000/-, from Rs.2000-3200/- to Rs.2200-4000/- and from 2000-3200/- to Rs.2200-4000/- respectively with effect from 18.11.1993 as per Government notification duly received. But by that time the husband of the petitioner has already retired from service on 31.1.1993. According to him, the benefit of above revision could not be extended to the husband of the petitioner. 12. Learned Additional Government Advocate further contended that after the pay of the late husband of the petitioner was revised, the subsequent increments in the scale of pay have been also awarded from time to time. According to him, the benefit of above revision could not be extended to the husband of the petitioner. 12. Learned Additional Government Advocate further contended that after the pay of the late husband of the petitioner was revised, the subsequent increments in the scale of pay have been also awarded from time to time. As the scale of pay of the Superintendent, Level-1 was higher than the promotional post of Additional Stamp Reporter-cum-Oath Commissioner and Establishment Officer and post of Assistant Registrar (Judicial) carries equal scale of pay, i.e., Rs.2200-3500/-, no fixation of pay in the higher post was required. Therefore, he submitted that the writ petition be dismissed. 13. Main point for consideration: (i) Whether the husband of the petitioner is entitled to further differential arrear salary and consequent revision pension as claimed by her? DISCUSSION 14. It is not in dispute that the petitioner had entered into service of the High Court on 17.3.1958 and retired from service on attaining the age of superannuation on 31.1.1993. It is admitted fact that due to dissimilarity between the scale of pay of the employees of the High Court and the State Secretariate under the ORSP Rules, 1985, 1989-1990, the husband of the petitioner filed O.J.C. No.1406 of 1996 and in that case the learned Single Bench of this Court allowed the writ petition of the petitioner by directing for refixation of his scale of pay at the rate of Rs.1975-2975/- with effect from 1.8.1986 at par with the counterparts working in the Secretariate. Also in that case this Court has allowed the subsequent pay revisions from the date as the counterparts in the State Secretariate were allowed. It is not in dispute that State has challenged such order of this Court in Civil Appeal No.5074 of 2004 where Their Lordships confirmed the view of this Court on rejection of the SLP filed by the State. 15. It is relevant to quote paragraph-7 of the judgment passed by this Court in O.J.C. No.1406 of 1996 filed by the husband of the petitioner and it is made in the following manner: “7. 15. It is relevant to quote paragraph-7 of the judgment passed by this Court in O.J.C. No.1406 of 1996 filed by the husband of the petitioner and it is made in the following manner: “7. In view of the reasons stated above, I allow the writ application and direct that the pay of the petitioners in the post of Superintendent Level-I shall be refixed in the scale of pay of Rs.1975-2975/- with effect from 1.8.1986 as has been allowed to the counterparts working in the State Secretariat and accordingly the subsequent pay revisions shall also be allowed from the dates their counterparts in the State Secretariat were allowed. The differential pay shall be calculated and paid to the petitioners within a period of six months. Their pension shall also be refixed accordingly and the arrears shall be paid within the said period.” From the aforesaid judgment, it is clear that not only the Court has allowed the husband of the petitioner for re-fixation of the scale of pay with effect from 1.8.1986 but also allowed the subsequent revision of pay scale at par with the counterparts working in the State Secretariat from the dates when the counterparts got the benefit of such revision. The observation of the Hon’ble Supreme Court in the aforesaid Civil Appeal No.5074 of 2004 is worthwhile to be re-produced below : “This appeal is illustrative of the usual apathy shown by executive apparatus of the State to the recommendations made by the High Court under Article 229 (2) of the Constitution in matters relating to the conditions of service of officers and servants of the High Courts. xxx xxx xxx In view of the discussion made herein above and the observations made by the three Judge Bench in Union of India v. S.B. Vohra (supra), we hold that the High Court did not commit any error by directing the appellants to fix the pay of the respondents in the scale of Rs.1975-2975/- with effect from 1.8.1986 and give them consequential benefits. In the result, the appeal is dismissed. The appellants are directed to implement the order of the High Court not only qua the respondents and/or their legal representatives but also extend similar benefit to other similarly situated employees and/or their representatives. In the result, the appeal is dismissed. The appellants are directed to implement the order of the High Court not only qua the respondents and/or their legal representatives but also extend similar benefit to other similarly situated employees and/or their representatives. The exercise for fixation of pay and payment of arrears shall be completed within a period of three months from today and a report to this effect be submitted to the Registrar of the High Court, who shall place the file before the Chief Justice of the High Court.” 16. With regard to the aforesaid observation, the Hon’ble Supreme Court has not only allowed the respondents of other similarly situated employees for fixation of pay as directed by this Court with consequential benefits, but also the anguish of the Hon’ble Supreme Court has been well expressed in the first para of their judgment. It is worthwhile to state that the Chief Justice of this Court has made correspondence on 16.2.1949 to allow the High Court employees of the same scale of pay as are admissible to the employees of corresponding ranks in the Secretariate which is the highest office of the executive. 17. Article 229 (2) of the Constitution states as follows : “229. Officers and servants and the expenses of High Courts.- xxx xxx xxx (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorized by the Chief Justice to make rules for the purpose : Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. xxx xxx xxx The aforesaid provision makes it clear that the Chief Justice of the High Court of Orissa with the approval of the Governor of Orissa can fix up the salaries, allowances, leave or pension as per the Orissa High Court (Conditions of Service of Staff) Rules, 1963 which of course has gone amended in the meantime. xxx xxx xxx The aforesaid provision makes it clear that the Chief Justice of the High Court of Orissa with the approval of the Governor of Orissa can fix up the salaries, allowances, leave or pension as per the Orissa High Court (Conditions of Service of Staff) Rules, 1963 which of course has gone amended in the meantime. So, no doubt by virtue of the constitutional provisions, the then Chief Justice had made recommendation to the State Government on 16.2.1949 and same has been accepted by allowing the High Court employees of same scale of pay as are admissible to the counterparts of the employees working in the State Secretariate. After the Hon’ble Supreme Court intervened in the matter, this Court issued a notification by amending the schedule of the Orissa High Court (Conditions of Service of Staff) Rules, 1963 and directed for revision of scale of pay as deemed to have come into force with effect from 1.5.1989. Accordingly the scale of pay of the husband of the petitioner was revised and re-fixed at Rs.2200-3500/- under ORSP Rules, 1989 with effect from 1.5.1989. 18. It is admitted fact that the husband of the petitioner got promotion from Superintendent, Level-I to Stamp Reporter & Oath Commissioner and then to Establishment Officer and finally to the Assistant Registrar (Judicial). It is the contention of the learned State Counsel that all the posts has got equal scale of pay of Rs.2200-3500/- at that time and the Assistant Registrar (Judicial) by then was re-designated as Additional Deputy Registrar (J & E) with the scale of pay of Rs.3000-4500/- with effect from 18.11.1993 as per Government order dated 31.10.1994 but by the time the husband of the petitioner has retired. 19. Learned Additional Government Advocate drew attention of the Court to necessary notification of the State Government vide Annexure-10 where the scale of pay of the aforesaid posts of the High Court have been revised. Such letter dated 31.10.1994 is produced below :- “Home Department No.55209 HS/2-4/94 Bhubaneswar, dated the 31/10/94 From Shri B. Mahapatra Under Secretary to Government To The Registrar (Judicial) Orissa High Court, Cuttack Sub:- Revision of pay scale of certain posts of the High Court Establishment. Such letter dated 31.10.1994 is produced below :- “Home Department No.55209 HS/2-4/94 Bhubaneswar, dated the 31/10/94 From Shri B. Mahapatra Under Secretary to Government To The Registrar (Judicial) Orissa High Court, Cuttack Sub:- Revision of pay scale of certain posts of the High Court Establishment. Sir, I am directed to invite a reference to Court’s letter No.356, Dt.7.4.94 on the above subject and to convey the approval of the Governor to the revision of scale of pay of the following posts as noted against each and to approve the proposed schedule. The post of Assistant Registrar (Judicial) is re-designated as Additional Deputy Registrar (Judicial and Establishment). Sl. No. Name of the Post Existing scale of pay Revised scale of pay 1. Assistant Registrar (Judicial) (Re-designated as Additional Deputy Registrar) Rs.2200-3500/- Rs.3000-4500/- 2. Establishment Officer Rs.2000-3500/- 2200-4000 3. Stamp Reporter and Oath Commissioner Rs.2000-3200 2200-4000 4. Additional Stamp Reporter and Oath Commissioner Rs.2000-3200 2200-4000 The above revision of scale of pay will be given effect from 18.11.93. This has been concurred in by F.D. in their U.O.R. No.74-PCC dt. 22.4.94. Necessary notification revising the scale of pay of the above posts may kindly be issued. Yours faithfully, Sd/- Under Secretary to Government” 20. From the aforesaid letter, it is clear that with effect from 18.11.1993 the revisional scale of pay was allowed. Before revision, it appears the scale of pay of Additional Stamp Reporter and Stamp Reporter were equal and the Establishment Officer has got only scale of pay little higher in last stage but not in initial stage. On the other hand, the Assistant Registrar (Judicial) has got the scale of pay of Rs.2200-3500/- at the pre-revised scale. The scale of pay of Additional Stamp Reporter, Stamp Reporter and Establishment Officer became the same but the Assistant Registrar (Judicial) being re-designated as Additional Deputy Registrar (J&E) was revised to Rs.3000-4500/- with effect from 18.11.1993. 21. It is admitted fact that the husband of the petitioner was promoted from Superintendent, Level-I in the scale of pay of Rs.2200-3500/- with effect from 1.5.1989 vide Annexure-8. The hierarchy of promotion as available from Annexure-8 issued by the Registrar (Judicial) on 18.2.1991 shows that Additional Stamp Reporter and Establishment Officer remained less scale of pay than the Superintendent, Level-I whereas Assistant Registrar (Judicial) got the same scale of pay. The hierarchy of promotion as available from Annexure-8 issued by the Registrar (Judicial) on 18.2.1991 shows that Additional Stamp Reporter and Establishment Officer remained less scale of pay than the Superintendent, Level-I whereas Assistant Registrar (Judicial) got the same scale of pay. But it is admitted fact that the husband of the petitioner was promoted from Superintendent, Level-I to Stamp Reporter and Establishment Officer and then Assistant Registrar. In exercise of power conferred by the Constitution in order to remove the anomaly this Court has written a letter on 12.1.1995 under the orders of the Chief Justice to revise the scale of pay of the Additional Stamp Reporter, Stamp Reporter and Establishment Officer with effect from 1.5.1989 instead of 18.11.1993 to Rs.2200-4000/-. But that letter has not been acted upon till now. The learned counsel for the State is silent on this matter. 22. In terms of the above discussion, we are of the view that the State Government should accept the recommendation of the Hon’ble Chief Justice because of the clear observation of the Hon’ble Supreme Court in the case of the petitioner in Civil Appeal No.5074 of 2004 (supra) and direct for revision of scale of pay of the aforesaid posts at par with the counterparts of the Secretariate with effect from 1.5.1989 because the policy has been already dealt in 1949 as stated above that High Court employees will get benefit at par with the counterparts of the State Secretariate employees. When the policy has been framed long years back and there is power of the Chief Justice under Article 229, it is expected that State Government would not hesitate to honour the same. In the present case, the husband of the petitioner having been promoted to the post of Additional Stamp Reporter-cum-Oath Commissioner, Stamp Reporter-cum-Oath Commissioner and Establishment Officer would get the revised scale of pay at the rate of Rs.2200-4000/-with effect from 1.5.1989 as per the policy as discussed above and accordingly he is entitled to the revision scale of pay and the revised pension. The point is answered accordingly. CONCLUSION 23. The point is answered accordingly. CONCLUSION 23. It has been prayed in the writ petition to direct for re-fixation of the pay of the petitioner’s late husband in the rank of Additional Stamp Reporter and Oath Commissioner/Establishment Officer with effect from 1.4.1990 in the scale of pay of Rs.2200-4000/- and to the rank of Assistant Registrar (Judicial) in the scale of pay of Rs.3000-4500/- with effect from 1.2.1992 till superannuation on 31.1.1993 at par with the counterparts in the State Secretariate. It has been further prayed in the writ petition to direct for revision of the pension of the petitioner’s late husband with effect from 1.2.1993 and revise the family pension in favour of the petitioner with effect from 24.2.2005. 24. Learned Additional Government Advocate submitted that the order of the previous writ application has been already complied on payment of the differential arrear salary of the petitioner’s husband by revision of his scale of pay with effect from 1.5.1989 with consequential benefits. But learned counsel for the petitioner submitted that the differential arrear with proper fixation of pay has not been done because as per the observation of the Chief Justice the pay of the husband of the petitioner should have been fixed in the rank of the Stamp Reporter and Oath Commissioner at the rate of Rs.2200-4000/- with effect from 1.5.1989 and accordingly the pay should be also revised at the stage of Assistant Registrar (Judicial). 25. In view of the above analysis, we are of the view that the constitutional mandate as conferred on the Chief Justice of the Orissa High Court has not been properly followed by the State Government inasmuch as the proposal was sent as early as in 1949 to equate the High Court employees with the employees of the State Secretariate and same view has been also duly approved by this Court and by the Hon’ble Apex Court in the last writ application. Rather the Hon’ble Supreme Court have observed that the recommendation of the Chief Justice should be respected by the State Government as he being the head of the judiciary has to look for the establishment of the High Court which is not less than the State Secretariate. Rather the Hon’ble Supreme Court have observed that the recommendation of the Chief Justice should be respected by the State Government as he being the head of the judiciary has to look for the establishment of the High Court which is not less than the State Secretariate. Therefore, we are of the opinion that the State Government by honouring the letter dated 12.1.1995 of the Chief Justice of this Court should revise the scale of pay of the Additional Stamp Reporter and Oath Commissioner, Stamp Reporter and Oath Commissioner and Establishment Officer at the rate of Rs.2200-4000/- and the post of Assistant Registrar (Judicial) at the rate of Rs.3000-4500/- as suggested in the matter with effect from 1.5.1989 instead of 18.11.1993 as the counterparts of these employees in the State Secretariate have availed such benefit from 1.5.1989 to avoid violation of Article 14 and 16 of the Constitution. Hence we direct the following : (1) The opposite party No.3 would revise and re-fix the scale of pay of the petitioner’s late husband in the rank of Additional Stamp Reporter and Oath Commissioner, Stamp Reporter and Oath Commissioner and Establishment Officer with effect from 1.4.1990 in the scale of pay of Rs.2200-4000/- and in the rank of Assistant Registrar (Judicial) in the scale of pay of Rs.3000-4500/- with effect from 1.2.1992 at par with the counterparts in the State Secretariate and would revise the pension of the petitioner’s late husband with effect from 1.2.1993 and revise the family pension of the petitioner with effect from 24.2.2005; and (2) Opposite parties would disburse the payment after re-fixation of the pay as per the provisions of the Orissa Service Code which is also applicable to the High Court employees so far as fixation of pay and other service conditions are concerned; (3) The differential arrear amount on above count should be paid to the petitioner by the opposite parties accordingly. The above entire exercise must be completed within a period of two months from today. With the above observation and direction, the writ petition is disposed of. A free copy of this judgment be supplied to the learned Additional Government Advocate for immediate communication of the same to the Chief Secretary to the State Government and the Registrar General of this Court.