The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 9513 of 2014 An application under Sections 226 and 227 of the Constitution of India) --------------- Prakash Chandra Panigrahi ...… and Others Petitioners -Versus- State of Odisha and Others ...…. Opp. Parties Advocate(s) appeared in this case :- _______________________________________________________ For Petitioner : Mr. S.N. Sharma, Advocate For Opp. Parties : Mr. S.N. Patanaik [Additional Government Advocate] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 15th May, 2024 SASHIKANTA MISHRA, J.
Legal Reasoning
for which they have approached this Court in the present writ petition. 5. Counter affidavit has been filed by the Assistant Director, Regional Directorate of Education-Opposite Party No.3, inter alia, stating that the Finance, Department memo dated 02.06.2010 is meant for stepping up/antedation of pay of government employees only under ORSP Rules,2008 vide Finance Department Notification No.5544/F dated 24.12.2008. Further there is no provision for stepping up/antedation of pay in respect of employees of Non-Government Aided Colleges in the resolution dated 21.05.2009 of the Department of Higher Education. 6. In the rejoinder filed by the petitioners to the counter filed by the State, it is stated that Rule-9 the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff Aided Educational Institutions) Rules, 1974 (for short, the 1974 Rules) provides for parity of pay, dearness allowance etc. of employees of aided institution with their counter parts in Page 4 of 8 the government educational institutions. 7. Heard Mr. S.N. Sharma, learned counsel for the petitioner and Mr. S.N. Patanaik, learned Addl. Government Advocate for the State. 8. Mr. Sharma submits that Rule 9 of the 1974 Rules is very clear to the effect that the employees of aided educational institutions are entitled to salary and pay at par with their counter parts in the government educational institutions. Therefore, the stand taken by the State in its counter cannot be accepted. 9. Mr. S.N. Patanaik, learned State Counsel would argue that by Resolution dated 21.05.2000, the government in Department of Higher Education extended the benefit of Revised Scale of Pay Rules, 2008 to the employees of the Non-Government Aided Colleges. However, no provision for stepping-up/antedation of pay was provided therein. 10. This Court, after hearing the parties, finds that the petitioners’ grievance raised through their multiple representations has not been addressed by the concerned Page 5 of 8 authority as yet. It goes without saying that it is for the authority to take a decision either way on the grievance of the petitioners at the first instance. However, in view of the particular stand taken by the opposite party in its counter, this Court has considered the matter with reference to the relevant clarification issued by the Finance Department and the provisions of 1947 Rules. As already stated, the Finance Department has issued the following clarification: Points of doubt SI No. an (1) Whether employee can step up his pay or antedate the his of date increment to that of junior where junior gets on more pay of account availing ACP after his usual increment? his Clarification ‘A’ Yes, the pay of an employee can be stepped up or date of increment can be antedated with that his junior where senior gets less pay junior on account of than his fixation of pay of the junior in ACP after availing his usual increment. For example:- Suppose ‘A’ is senior to ‘B’. Both of them are drawing the pay of Rs.11630/- with G.P. of Rs.4200/- and date of increment the of increment of ‘B’ is 01.08.2007. The pay of is fixed at Rs.12110/- with G.P. of Rs.4200/- of ACP w.e.f. on allowing is 15.02.2007 which before sanction increment, of usual whereas the pay of ‘B’ fixed at Rs.12600/- with G.P. of Rs.420/- on allowing of ACP w.e.f. 15.09.2007 which is after sanction of usual on 01.08.2007. is 01.03.2007 and increment due ‘A’ In such a case, the pay of ‘A’ can Page 6 of 8 be stepped up/antedated with that of ‘B’ w.e.f. 15.09.2007, i..e. the date from which ‘B’ drawing more pay. Further in the resolution dated 21.05.2000 of the Department of Higher Education, there is no specific provision prescribed for stepping up/antedation of pay of seniors with the juniors but then the 1974 Rules takes care of such contingency through Rule 9 (1), which reads as follows: 9. Drawal of pay and allowance by employees of Aided Institutions: (1) Every employee of an Aided Educational Institution shall draw the same pay, darkness allowance and subsistence allowance in case of suspicion as is admissible to counter part in the Government educational Institutions under the relevant rules applicable to him and shall ordinary be paid in the moth following months to which the claim relate directly by Government or by any Officer or by any Agency authorized by Government.” 11. Thus there being a clear statutory provision governing the field, there is no way by which the benefit of stepping up/antedation of pay of the petitioners can be denied. To such extent therefore, the stand taken by the opposite parties in their counter as referred above, is untenable. Page 7 of 8
Arguments
As directed, Mr. Sharma, learned counsel for the petitioners files an additional affidavit specifically stating that the petitioners are senior to Sunil Kumar Patanaik supported by documents. The same be kept on record. The writ application is taken up for hearing. Page 1 of 8 2. The petitioners have filed this writ application seeking the following relief: the Opp. Parties “Under the circumstances, it is, therefore humbly prayed that, this Hon’ble court may graciously be pleased to allow this writ petition and a writ in the nature of mandamus may be to step issued directing up/antedated the date of increment/pay of the petitioner with that of Sri Sunil Kumar Pattanaik, i.e., the date from which Sri Sunil Kumar Pattanaik. drawing more pay than the petitioners and further may please be direct the Opp. Parties to release the current and differential arrears step salary up/antedated fixation of pay to the petitioners within a short stipulated period. the petitioners such on of And any other further order as would deem fit and proper be also passed in order to give complete relief to the petitioners. And for this act of kindness the petitioners are as in duty bound shall ever pray.” 3. All the seven petitioners are working as Lecturers in RCM Science College, Khallikote having been appointed on different dates. They have been drawing their salary components directly from the State Government under the Plan Scheme as the College is an Aided Educational Institution within the meaning of Section (3)(b) of the Odisha Education Act. As per the Odisha Revised Scale of Pay Rules 2008, pay scale of the petitioners was revised with effect from 01.01.2006 with the next date of increment being fixed at 01.01.2007. The pay scale of one Page 2 of 8 Sunil Kumar Patanaik working as Lecturer in Chemistry in the said College and junior to the petitioners, was also revised with effect from 01.01.2006. However, his next date of increment was fixed as 01.06.2006. As a result, the petitioners, despite being senior to said Sunil Kumar Patanaik, received less salary in view of the fixation of pay after revision. The petitioners submitted representations for stepping up of their pay to maintain parity with their junior. It is stated that despite several representations, no action was taken. 4. In the meantime, the Government in Finance Department, vide Memo No. 25541 dated 02.06.2010, issued a clarification to the effect that the pay of an employee can be stepped up or the date of increment can be antedated with that of his junior where the senior gets less pay than his junior on account of fixation of pay of the junior in RSP after availing his usual increment. It is the case of the petitioners that despite such clarification issued by the Finance Department, the grievance of the petitioners for stepping up of their pay was not addressed Page 3 of 8
Decision
12. For the foregoing reasons therefore, the writ petition is disposed of granting liberty to the petitioners to submit fresh representations addressed to the Director, Higher Education-Opposite Party No.2 ventilating their grievance within two weeks. If such representations are filed within the period stipulated, the Director shall consider the same in light of clarification issued by the Finance Department taking particular note of Rule 9(1) of the 1974 Rules. A lawful decision in this regard shall be passed by the Director within a period of four weeks thereafter. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-May-2024 13:01:23 Page 8 of 8