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2018 DIGILAW 350 (ORI)

Haladhar Mishra v. State of Orissa

2018-04-03

S.N.PRASAD

body2018
JUDGMENT S.N. PRASAD, J. - This writ petition is for quashing the order dated 21.04.2011 passed by the Director, Municipal Administration & Ex-Officio Additional Secretary to Government, Housing & Urban Development Department, since on the basis of which the pay scale which has been extended in favour of the petitioners at the time of taking them under regular establishment has been taken away thereby treating the services of the petitioners as fresh appointees. 2. The fact of the case, in brief, is that the petitioners were working in the capacity of DLR/NMR/Adhoc in between the period from 15.09.1982 to 30.06.1992. Their cases have been considered for regular appointment in the post of Junior Assistant (LFS Cadre) in the scale of pay of Rs. 950-20-1150-EB-25-1500/- vide Housing & Urban Development Department Order No. 16998 dated 17.5.1999 and thereafter, the petitioners have resumed their duty under the regular establishment and were getting their pay on the basis of pay scale of Rs. 950-20-1150-EB-25-1500/-, but all of a sudden, the Director, Municipal Administration & Ex-Officio Additional Secretary to Government of Orissa, Housing & Urban Development Department has issued a communication dated 21.4.2011 addressed to the District Audit Officer (LFA), Puri whereby and whereunder the stipulation regarding fixation of pay scale has been made which is to be fixed w.e.f. the date of the benefit and thereby the authorities have decided to fix the pay scale as per the pay scale prevalent as on 17.5.1999 by treating the petitioners as fresh appointees. Hence, this writ petition. 3. Learned counsel appearing for the petitioners submits that in the order of regularization, a specific stipulation has been made that there shall be no financial benefit whatsoever the period of service already rendered and the order shall come into effect from the date of their reporting for duty, although the services rendered in the capacity of DLR/NMR, the said period will be counted towards the seniority, meaning thereby, if the petitioners have been appointed on 19.1.1983 as DLR/NMR and when decision has been taken to take them under regular establishment i.e. LFS Cadre by counting the period already rendered from the date of initial appointment, but the same will not be considered for any financial benefit, the implied meaning of which will be that whatever the pay scale at the time of initial appointment i.e. on 19.1.1983 was there for the post in question. The petitioners immediately after coming under the regular establishment on 17.5.1999 the corresponding pay scale from the date of initial appointment will be attached to the said post and accordingly, he will get the pay scale. However, without any arrear from the date of initial appointment and exactly on the basis of that pay scale, the petitioners have been given the pay scale of Rs. 950-20-1150-EB-25-1500/- by issuing communication dated 21.4.2011, the implied meaning of which will be that the petitioners will be treated fresh appointees in the year 1999 and as such, the stipulation made in the communication dated 17.5.1999 to the effect that the period rendered by the persons so regularized shall be counted towards seniority and once it has been decided to be counted, such category of employees will be entitled to get the corresponding pay scale of the said post at the time of the regular appointment otherwise it would be in contradiction to the decision taken by the authority to count the period rendered by the employees towards seniority. 4. Mr. B.P. Tripathy, learned Additional Government Advocate appearing for the State-opposite parties has submitted on the basis of the statement made by the opposite parties in their counter affidavit that the period rendered by the petitioners under the DLR/NMR capacity since have been decided to be counted seniority without any financial benefit and as such, the decision has been taken by the Director by way of communication dated 21.4.2011. Since according to the Director, it is in deviation to the decision taken on 17.5.1999. However, he is not in dispute with respect to the fact that the petitioners are entitled to get the corresponding pay scale as on the date of taking them under regular establishment although without any financial benefit i.e. arrear of difference of salary from the date of initial appointment. 5. This Court, after appreciating the arguments advanced on behalf of the parties and going through the pleadings made by the parties in the writ petition as well as affidavits, has found that the petitioner were appointed after being selected to the post of LDC on 19.1.1983. 5. This Court, after appreciating the arguments advanced on behalf of the parties and going through the pleadings made by the parties in the writ petition as well as affidavits, has found that the petitioner were appointed after being selected to the post of LDC on 19.1.1983. Subsequently the Government has taken decision on 17.5.1999, in terms of the order passed by this Court, taking them in regular establishment of LFS Cadre with a decision that the period rendered by them from the date of initial appointment will be counted for the purpose of seniority, however, without any financial benefit, as would be evident from the order dated 17.5.1999. For better appreciation, the contents of the said order are reflected herein below:- “However, it is ordered that the seniority of the persons so regularized shall be counter towards their service but there shall be no financial benefit whatsoever for the period of services already rendered and this order shall come into effect from the date of their reporting for duty as such in the respective U.L.Bs.” 6. This Court, after going across the decision taken by the authority on 17.5.1999, is of the view that the past period rendered by the petitioners will be counted towards seniority and there shall not be given any financial benefit i.e. arrear of difference of salary on the basis of regular pay scale of the said post will not be available to the petitioners. The petitioners, after accepting the condition, have resumed their duty and accordingly they have been given pay scale of the post of Junior Assistant i.e. pay scale of Rs. 950-20-1150-EB-25-1500/- with D.A. and other allowances as admissible from time to time to municipal employees. The petitioners were getting the pay scale on the basis of the pay scale stipulated in the order dated 17.5.1999, but thereafter, communication dated 21.4.2011 has been issued by the Director, Municipal Administration & Ex-Officio Additional Secretary to Government of Orissa, Housing & Urban Development Department addressed to the District Audit Officer (LFA), Puri whereby and whereunder it has been stated that the services of the petitioners have been taken under regular establishment as Junior Assistant (LFS Cadre) in the pay scale of Rs. 950-20-1150-EB-25-1500/- vide Order No. 16998 dated 17.5.1999 wherein there is stipulation that the seniority shall be counted towards their services, but there shall be no financial benefit for the period of service already rendered. The order deems to have come into effect on the date of their reporting for duty in regular posts of the concerned urban local bodies. It has further been stipulated in para-2 of the order dated 17.5.1999 which clarifies the position and leaves no ambiguity regarding fixation of pay scale and the date of effect of the benefit thereof. Anything done in deviation of the aforesaid stipulation can be treated as intentional and motivated. 7. According to the petitioners, the authorities, in the light of the communication dated 21.4.2011, have fixed the pay scale of the petitioners afresh on the basis of the revised pay scale of 2006 and 2008. Hence, the cause of action arose for filing the writ petition. 8. This Court, after considering the argument advanced on behalf of the petitioners, is of view that when there is a stipulation made in the order dated 17.5.1999 to the effect that the seniority from the date of initial appointment shall be counted towards services, but there shall be no financial benefits whatsoever the period of service already rendered, the meaning of this would be that whatever pay scale of Junior Assistant was on the date of appointment of the petitioners, they will get the corresponding pay scale as on the date of taking them under regular establishment i.e. 17.5.1999. The pay scale of the petitioners is to be re-fixed taking the pay scale of Rs. 950-20-1150-EB-25-1500/- and if the contention of the State-opposite parties will be taken as correct, then the decision taken by the Housing & Urban Development Department in its order dated 17.5.1999 to the effect that the past services rendered by the categories of employees shall be counted for the purpose of service would be redundant as because if the pay scale would be given on the basis of the pay scale on the date of taking the petitioners under regular establishment, it will be treated to be a fresh appointment and not a regularization, as would be evident from order dated 17.5.1999 that the services of the petitioners were regularized in pursuant to the order passed by the High Court, however, without any financial benefits. This would mean that the petitioner will not be entitled to any arrear of difference of salary rather the pay scale corresponding to the pay scale attached to the post is entitled to be given with prospective effect by counting the period towards seniority. The petitioners are not claiming any arrear of difference of salary as per the decision taken by the authority in the order dated 17.5.1999 and as such, it cannot be said that there is any deviation with decision taken vide order dated 17.5.1999. however, it is being gathered from communication dated 4.5.2011 that the decision has been taken to fix the pay scale afresh on the basis of Revised Scale of pay 2006 and 2008. It does support the contention of the petitioners and as such, the said decision taken by the authority not to give the pay scale taking the past services rendered by them will not be proper. 9. In view thereof, whatever the decision taken by the authority on 17.5.1999 by placing the petitioners in the pay scale of Rs. 950-20-1150-EB-25-1500/- with prospective effect will not to be said to suffer from any inference. In view thereof, the writ petition stands allowed. The writ petition is accordingly disposed of. Petition disposed of.