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2018 DIGILAW 596 (ORI)

State of Orissa v. Jagannath Das

2018-06-19

K.R.MOHAPATRA, SANJU PANDA

body2018
JUDGMENT K.R. MOHAPATRA, J. - W.P.(C) No.22504 of 2017 has been filed by the State of Odisha assailing the order dated 17.11.2011 passed by learned Orissa Administrative Tribunal, Cuttack Bench, Cuttack (for short, ‘the Tribunal’) in O.A. No.1017(C) of 2001 and W.P.(C) No.6550 of 2017 has been filed assailing the order dated 08.03.2017 passed by learned Tribunal in C.P. No.257 (C) of 2012, which was filed alleging non-compliance of order dated 17.11.2011 in O.A. No.1017 (C) of 2001. Since both the writ petitions involve same set of facts and parties to the aforesaid writ petitions are the same, those are taken up for analogous hearing and disposed of by this common judgment. 2. Shorn of unnecessary details, the facts giving rise to filing of the aforesaid writ petitions are as follows. One Sri Jagannath Das (hereinafter referred to as ‘the petitioner’) had appeared in a common recruitment test held in the year 1984 for appointment to the post of A.S.I.-M/Junior Clerk under Superintendent of Police, Cuttack Sadar. However, he was placed in the waiting list. Subsequently, 19 posts of Record Keeper were created vide Letter No.37414/P dated 31.07.1985 of the Home Department. As the petitioner was placed in the waiting list, he was asked for an option to join the post of Record Keeper. The petitioner, in reply, consented to the same in writing. Accordingly, he was appointed as a Record Keeper in the office of Superintendent of Police, Cuttack, Sadar, vide letter dated 02.11.1985. While continuing as such, Methods of Recruitment and Conditions of Service of the Ministerial Officers under the Director General of Police office and its Subordinate Offices Rules, 1988 was framed and subsequently another set of Rules were framed in the year 1995, but the post of Record Keeper was not included as a part of the Ministerial Officers cadre in the said Rules. Being deprived of promotional prospects, the petitioner made several representations, but of no avail. Accordingly, he filed O.A. No.1017 (C) of 2001 for a direction to include him in the cadre of the A.S.I-M/Junior Clerk in the ministerial cadre of the office of the Director General of Police and its subordinate offices, so that he could not be deprived of promotional prospect. He further prayed to consider his case for promotion to the rank of Senior Clerk and Head Clerk in the cadre of aforesaid two offices. 3. He further prayed to consider his case for promotion to the rank of Senior Clerk and Head Clerk in the cadre of aforesaid two offices. 3. Counter affidavit was filed by the opposite parties (Director General and Inspector General of Police as well as Superintended of Police, Kendrapara), contending inter alia that the petitioner was in the waiting list of recruitment test held in the year 1984. However, upon creation of the post of Record Keeper in the office of the Superintendent of Police, Cuttack, Sadar, he was given an opportunity to give option to join the said post. The said post of Record Keeper is an ex-cadre post and has no promotional avenue. Being aware of the situation, the petitioner had consented in writing to join the said post and accordingly, he was issued with the order of appointment dated 02.11.1985 by Superintend of Police, Cuttack, Sadar. The petitioner had represented on 19.04.1997 for being included in the common cadre of (A.S.I.-M) relying upon the decision dated 28.11.1995 of the Hon’ble Apex Court in Civil Appeal No. 2091 of 1990 (Sisir Kumar Mohanty -v- State of Orissa), but pursuant to subsequent order dated 16.04.1998 of Hon’ble Apex Court passed in R.P.(C) No. 279 of 1998 (Ashok Kumar Pattnaik and others –v- State of Orissa and another), the aforesaid order dated 28.11.1995 was recalled. Thus, the representation filed by the petitioner could not be considered favourably. Accordingly, opposite parties prayed for dismissal of the Original Application. 4. Taking into consideration the rival contentions of the parties, learned Tribunal passed the impugned order dated 17.11.2011 holding as under:- “In view of such observations of the Hon’ble Apex Court, the Government, i.e., Respondent no.1, shall be at liberty to create adequate avenues for promotion for the applicant and the similarly placed persons considering the exigency of service and finances available as these will be motivators for personnel such as the applicant who are otherwise likely to retire without promotion, or else consider allowing higher scale of pay of Record Keepers as prevalent in other departments to such personnel who are discharging the same duties and bear the same designation.” 5. Alleging non-compliance of the order passed in O.A. No. 1017 (C) of 2001, the petitioner filed C.P. No.257 (C) of 2012. Alleging non-compliance of the order passed in O.A. No. 1017 (C) of 2001, the petitioner filed C.P. No.257 (C) of 2012. The contempt proceeding was disposed of on 08.03.2017 with the following observation:- “Since the applicant has already been allowed financial upgradation i.e. higher scale by way of sanction of RACP benefit, we are of the considered view that that order of the Tribunal dated 07.11.2011 has since been complied by the respondents. Hence, no contempt lies against the contemnors. Accordingly, the contempt proceeding is dropped. The applicant is however at liberty to approach this Tribunal if he is still aggrieved. Send copies.” Assailing the order passed in a contempt proceeding, the petitioner filed W.P.(C) No.6550 of 2017. Likewise, after disposal of the contempt proceeding, the State of Odisha filed W.P.(C) No. 22504 of 2017 assailing order passed in the Original Application. 6. Mr.Khuntia, learned counsel for the petitioner defending the order passed in O.A. No.1017(C) of 2001, contended that there was a clear direction to the Government for creation of adequate promotional avenue for the petitioner and similarly situated persons considering the exigency of service. It was also alternatively directed that the Government should consider allowing higher scale of pay to Record Keeper as prevalent in other Departments. Mr.Khuntia relying upon the document reflecting scale of pay of Record Keeper under Revenue and Excise Department of the year, 1985, which was filed by him as an enclosure to O.A. No.1017 (C) of 2001 submitted that the petitioner and similarly situated persons are entitled to higher scale of pay. Further, due to non-compliance of direction in the Original Application the petitioner had filed C.P. No. 257 (C) of 2012. During pendency of the contempt proceeding, the Government filed a compliance report dated 19.05.2014, wherein, it was reflected that the petitioner was allowed higher scale of pay and grade pay of Record Keeper, i.e., Rs.10,840 + G.P. Rs.2400/- in the pay band of Rs.5200-20,200 + grade pay of Rs.2400/-. That apart, when the matter was taken up on 22.09.2016, learned Standing Counsel for the State produced the letter of the Superintendent of Police, Kendrapara dated 05.04.2016 enclosing the order sanctioning RACP benefit, i.e., financial up-gradation fixing the higher grade pay of Rs.2,800/- with effect from 07.11.2015 in favour of the petitioner on completion of 30 years of service. That apart, when the matter was taken up on 22.09.2016, learned Standing Counsel for the State produced the letter of the Superintendent of Police, Kendrapara dated 05.04.2016 enclosing the order sanctioning RACP benefit, i.e., financial up-gradation fixing the higher grade pay of Rs.2,800/- with effect from 07.11.2015 in favour of the petitioner on completion of 30 years of service. Learned Tribunal misconstruing the same to be the compliance of orders passed in the Original Application, dropped the contempt proceeding, which is per se illegal. In fact, neither any promotional avenue was created in respect of the post of Record Keeper, nor was the petitioner given higher scale of pay, as directed. The pay scale of the petitioner as reflected in the compliance report was hiked in due course along with other employees in the office of the Superintendent of Police. The petitioner was in the same scale of pay as that of A.S.I.-M/Junior Clerk and the pay scale of both the posts were enhanced at the same time. Learned Tribunal miserably failed to consider that the State Government did not at all take into consideration the scale of pay of Record Keepers in other departments of the State Government, which was much higher than the petitioner has been allowed to draw in the garb of compliance of the order of learned Tribunal. As such, the same cannot be treated to be compliance of the direction made in the Original Application. Hence, he prayed for a direction to opposite parties to comply with the order passed in the Original Application in its letter and spirit. 7. Objecting to the prayer of the State of Odisha in assailing the order passed in the Original Application, Mr. Khuntia, learned counsel for the petitioner submitted that the writ petition suffers from an inordinate delay and latches. As such, the same needs no consideration. Further, the order passed in the Original Application being a well reasoned one, the same needs no interference. 8. Mr. Sahoo, learned Additional Government Advocate for the State, per contra, submitted that the petitioner was in the waiting list in the recruitment test held for the post of A.S.I.-M/ Junior Clerk in different district offices. In order to provide an opportunity of employment, when the post of Record Keeper was created, the petitioner was asked to give option to be appointed to the post of Record Keeper. In order to provide an opportunity of employment, when the post of Record Keeper was created, the petitioner was asked to give option to be appointed to the post of Record Keeper. In response to the same, the petitioner gave his written consent to be appointed as Record Keeper. At the time of recruitment, he was well aware of the position that the post of Record Keeper is an ex-cadre post and there was no promotional avenue. Being aware of the same, the petitioner joined his post. However, subsequently the pay scale was enhanced and as there was stagnation, he was given ACP/RACP from time to time. Although materials were placed before learned Tribunal denying the claim of the petitioner, learned Tribunal, without considering the same, issued a direction for creation of promotional avenue for the post of Record Keeper and in the alternative to consider allowing higher scale of pay to the petitioner, which is without jurisdiction. Creation of a post and/or grant of higher scale of pay is the discretion and domain of the Executive and no Court/Tribunal has any jurisdiction to issue direction in that respect. Accordingly, he prays for setting aside the order passed in the Original Application. Objecting to the contention of Mr. Khuntia, learned counsel for the petitioner, he submitted that after compliance of the order passed in a Original Application, the petitioner and similarly situated employees went on insisting upon the authorities to create the promotional avenue for the post of Record Keeper. Thus, the State of Odisha is constrained to file the present writ petition with a prayer for set aside the order passed in the Original Application, which is otherwise illegal and without jurisdiction. Hence, the delay in filing the writ petition should not be a bar to consider the prayer of the State of Odisha. We have heard learned counsel for the parties and perused the record. On perusal of the observation made by learned Tribunal in the Original Application (as quoted above), it appears that no direction has been issued either for creation of promotional avenue for the post of Record Keeper nor to allow higher scale of pay to the petitioner and similarly situated employees. It is a pious observation of learned Tribunal and is left to the discretion of the State of Odisha to consider the same. It is a pious observation of learned Tribunal and is left to the discretion of the State of Odisha to consider the same. The Government of Odisha in its wisdom thought it proper to enhance the scale of pay for the post of Record Keeper and also to grant RACP to the petitioner, which has been done pursuant to order passed in the Original Application. It further reveals that the State of Odisha has filed this writ petition almost after six years without explaining the inordinate delay in filing the same. It has only contended at paragraph-D of W.P.(C) No. 22504 of 2017 that ‘learned Tribunal has committed an error of law in considering the scale of pay and to create promotional avenue for the post of Record Keeper, which is a non-cadre post and passed a direction to provide promotional avenue and other financial allowances. The direction of learned Tribunal vitiates the entire proceeding and if the said order is allowed to stand, it would occasion failure of justice.’ That by itself is not a reason to condone the inordinate delay of six years. On perusal of the order passed in the contempt proceeding, i.e., C.P. No.257(C) of 2012, we find that the compliance report submitted by the Government of Odisha reveals that the scale of Record Keeper has been enhanced and for stagnation in one cadre, the petitioner has been allowed RACP. Thus, we find no infirmity in the contempt proceeding initiated by learned Tribunal. Accordingly, both the writ petitions stand dismissed being devoid of any merit. No costs. S. PANDA, J. I agree. Petitions dismissed.