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2018 DIGILAW 792 (ORI)

Bipine Bhari Mohanty v. State of Odisa

2018-10-25

G.R.PUROHIT

body2018
ORDER G.R. PUROHIT, MEMBER (JUDICIAL) - The applicant has impugned Office Order dtd. 30.04.14 (Annexure-11) by Resp. No.3 wherein he has been relieved from his duty of Craft Attendant (tailoring) in the afternoon of 30.04.14 on attaining the age of superannuation i.e. 58 years by virtue of letter dtd. 22.02.14 and 30.04.14 of Deputy Director, TE & SCERT, Odisha, Bhubaneswar. His grievance is that he is a Group-D employee and should have retired on superannuation on attaining 60 years of age, but has been wrongly allowed to retire on attaining 58 years of age and therefore Annexure-11 should be quashed, and respondents be directed to reinstate him back in service to discharge duties upto 30.04.16 with all consequential financial benefits. 2. The brief averments are as follows : The applicant was appointed as a Peon in Govt. Training College, Balasore and later on upgraded to College at Teacher Education, Balasore vide order dtd. 21.08.78 and he joined in the post on 23.08.78 in the scale of pay of Rs.200-250/- under ORSP Rules, 1974 which was revised from time to time as per ORSP Rules, 1981, 1985, 1989 and under ORSP Amendment Rules, 1990, ORSP Rules, 1998. The applicant was promoted to the post of Craft Attendant Wood Work vide Office Order No.1775 dtd. 01.12.1990 in the scale of pay of Rs.775-1025/- under ORSP Rules, 1989 which is also the scale of pay of Class-IV employees. He was given TBA Scale on 01.12.05 after completing 15 years of continuous service in the post of Craft Attendant and he was allowed next higher scale of pay from Rs.2650-4000/-. As per ORSP Rules, 2008, the said TBA scale has been revised to Rs.4440/-Rs. 7440/- with G.P. of Rs.1650/-. Subsequently, the Government in Finance Department revised the above scale of pay to Rs.4930/- to Rs.14,680/- with revised G.P. of Rs.1750/- as per Finance Department Resolution No.36518 dtd. 30.10.12.Therefore, the applicant is getting that scale of pay. While the matter stood thus, the G.A. Department vide Resolution No.18861 dtd. 08.07.13 (Annexcure-5) had made classification of posts with the scale of pay attached to the post and as per Annexure-5 dtd. 08.07.13, it has been specified that the post with scale of pay of Rs.4930-14,680/- with G.P. of Rs.1750/- shall be classified as Group-C category of post. While the matter stood thus, the G.A. Department vide Resolution No.18861 dtd. 08.07.13 (Annexcure-5) had made classification of posts with the scale of pay attached to the post and as per Annexure-5 dtd. 08.07.13, it has been specified that the post with scale of pay of Rs.4930-14,680/- with G.P. of Rs.1750/- shall be classified as Group-C category of post. As per the date of birth recorded in Service Book, the applicant being a Group-D employee was to retire on superannuation on completion of 60 years of service which falls on 30.04.16, but Resp. No.3 in view of the classification of Group-C category of post mentioned in Annexure-5, sought for clarification from the Director regarding the superannuation age of the applicant and the Director (Respondent No.2) vide his letter No.1172 dtd. 20.02.14 has mechanically clarified the retirement age of the applicant as 58 years wrongly putting him under classification of Group-C category of post on the basis of Annexure-5 and in view of such instruction, Resp No.3 vide impugned order at Annexure-11 has allowed the applicant to retire on completing 58 years of age. His stand is that though due to increase of pay in various ORSP Rules and TBA benefits on completion of 15 years of service, he was getting scale of pay and grade pay of Group-C employee but he was holding the post of Craft Attendant (Wood Work) which is a Group-D post and therefore, the classification of Group-C mentioned in Annexure-5 is not applicable to him. The applicant had earlier approached the Tribunal in O.A. No.477 (C) of 2014 for redressal of his grievance and the Tribunal disposed of the same vide order dtd. 11.4.14 at admission stage directing the respondents to consider his grievance regarding retirement at the age of 60 years keeping in view the Resolution dtd. 08.12.99 of G.A. Department at Annexure-8. His stand is that there is clear stipulation in Annexdure-8 that Group-D employees will retire from service on superannuation at the age of 60 years. 11.4.14 at admission stage directing the respondents to consider his grievance regarding retirement at the age of 60 years keeping in view the Resolution dtd. 08.12.99 of G.A. Department at Annexure-8. His stand is that there is clear stipulation in Annexdure-8 that Group-D employees will retire from service on superannuation at the age of 60 years. It is further clarified that the employees in Group-D category will continue to be treated as such notwithstanding their movement to the time bound advancement scale/career advancement scale Senior Pay Scale which may place them in a scale of pay to the maximum of which is more than the maximum of scale of pay prescribed in such Group-”D” employees to a higher scale of pay by way of promotion or selection and as such higher scale of pay of the promotional post bring him/her to other group or groups from time to time, such an employee shall retire from service on superannuation after attaining the age of 58 years prescribed for all other group of employees as per the existing provisions contained under Rule 71 (a) of Orissa Service Code. The stand of the applicant is that initially he had joined in the post of Peon and was promoted to the post of Craft Attendant (Wood Work) which is also a Class-IV post. But due to advancement scale of pay on account of T.B.A. after completion of 15 years of service and subsequent ORSP Rules, he had reached the scale of pay which is mentioned for Group-C employees in Annexure-5. In view of the clear provision in Annexure-8 dtd. 08.12.99 as he is continuing in the post of Craft Attendant, his retirement age is 60 years, but has been wrongly allowed to retire on completion of 58 years. In order to substantiate his stand that the post of Craft Attendant which carries the scale of pay of Rs.775-1025 under ORSP Rules, 1989, he has relied on G.A. Department Resolution dtd.22.09.1986 wherein it is mentioned that all posts in the scale maximum of which is Rs.1025/- or less are Group-D employees. He has also relied on the Resolution dtd.07.06.99 of the G.A. Department in the Pay Scale, the maximum of which is Rs.3540/- or less is Group-D post. 3. Counter has been filed by Resp No.3 with the following averments : The factual aspect as described in the O.A. has not been disputed. He has also relied on the Resolution dtd.07.06.99 of the G.A. Department in the Pay Scale, the maximum of which is Rs.3540/- or less is Group-D post. 3. Counter has been filed by Resp No.3 with the following averments : The factual aspect as described in the O.A. has not been disputed. But only stand has been taken that as per Annexure-5 dtd. 08.07.13 post in the scale of pay of Rs.4,930-16,680/- with G.P. of Rs.1750/- has been classified as Group-C post and as the applicant was drawing such scale of pay as Craft Attendant, it was treated as Group-C post and accordingly made to retire from service at the age of 58 years. 4. I have heard Mr. B.B. Mohanty, learned Counsel for the applicant and Mr. K.K.Rath, learned Standing Counsel for S & ME. Both the sides have advanced their argument in the light of their respective pleadings. 5. From the pleadings of the applicant it is crystal clear that the applicant had initially joined in the post of Peon which is a Group-D post on 23.08.78 and was promoted to the post of Craft Attendant (Wood Work) vide Order dtd. 01.12.90 in the scale of pay of Rs.775-1025/- under ORSP Rules, 1989 which is also a Group-D post which is apparent from G.A. Department Resolution dtd.22.09.95 (Annexure-13) series. Subsequently, that scale of pay was revised to Rs.2610-3540/- under ORSP Rules, 1998 which is also a Group-D post as per G.A. Department Resolution dtd.07.06.99 (Annexure-13 series). Only due to grant of T.B.A. benefits on completion of 15 years of service in the post of Craft Attendant and revision of pay as per different ORSP Rules, he is in the scale of pay of Rs.4,930-14,680/- with G.P. of Rs.1750/-. But he cannot be treated as Group-C employee as the post of Craft Attendant is a Group-D post. This has been clarified in G.A. Department Resolution dtd. 08.12.99 at Annexure-8.so, the applicant is to be treated as a Group-D employee as he was never promoted to Group-C post and therefore, his retirement age is 60 years. He has been wrongly asked to retire on attaining 58 years with effect from 30.04.14 on wrong interpretation of Annexure-5. 6. Though the applicant had filed the O.A. on 06.04.14, but he attained 60 years of age on 30.04l.16 and therefore, no direction can be given for his reinstatement in service. He has been wrongly asked to retire on attaining 58 years with effect from 30.04.14 on wrong interpretation of Annexure-5. 6. Though the applicant had filed the O.A. on 06.04.14, but he attained 60 years of age on 30.04l.16 and therefore, no direction can be given for his reinstatement in service. But as he has been wrongly allowed to retire with effect from 30.04.14, he should be treated to have been continuing in service till 30.04.14, and his date of superannuation be treated as 30.04.14. Accordingly arrear salary for the period from 01.05.14 to 30.04.16 be paid to the applicant and his pension also be determined taking into consideration his last pay which he will draw as on 30.04.16.The payment of arrear salary for the aforesaid period be made within 3 months from the date of receipt of the copy of the order. With these orders, the O.A. is disposed of. O.A. disposed of.