Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P(C) NO. 2022 OF 2002 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Nilakantha Panda ..… Petitioner -Versus- Secretary to Govt. Fisheries and Animal Resources Development Department, Bhubaneswar & Ors. ….. Opp. Parties For petitioner : Mr. C.A. Rao, Sr. Advocate along with M/s. A.K. Routh & S.K. Behera, Advocates For opp. parties : Mr. S.S. Kanungo, Addl. Government Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing:18.09.2023 :: Date of Judgment: 22.09.2023 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash Annexure-11, the order/letter dated 05.04.2000, by which opposite party no.2- Director, Animal Husbandary & Veterinary Services, Odisha has intimated the petitioner that his proposal for enhancement of contractual pay has been turned // 2 // down by the Finance Department, as well as Annexure- 12, the order dated 13.05.2002 passed in O.A. No.1024 of 2000, by which the Odisha Administrative Tribunal, Bhubaneswar has disallowed the claim of the petitioner. 2. The factual matrix of the case, in brief, is that the petitioner, while continuing in a Class-I post, i.e., Under Secretary to the Government in School and Mass Education Department, retired from service on 31.07.1993 on attaining the age of superannuation. After five years of retirement, he got a contractual appointment to the post of Administrative Officer on a consolidated pay of Rs.5,000/- per month, vide appointment letter dated 31.12.1997, in a Danish Government sponsored project, called Integrated Live Stock Development Project in Koraput district with the Headquarters at Jeypore for a period of two years or till completion of the project period, whichever is earlier. 2.1. Prior to his appointment, opposite party no.5 had suggested to opposite party no.2 with regard to the pay of the petitioner at a consolidated amount of // 3 // Rs.7,500/- per month in its letter dated 03.07.1997, which was recommended vide order dated 11.12.1997 by opposite party no.2 basing on the last pre- retirement pay (last basic pay) of Rs.3,500/- as on 31.07.1993. As the appointment was on contractual basis, an agreement was executed on 18.01.1998 between the petitioner and opposite party no.2, wherein the salary of the petitioner was fixed at Rs.5,000/- consolidated per month. On execution of agreement, the petitioner joined in the post of Administrative Officer in DAILDP. From the date of receiving the payment of Rs.5,000/-, he made objection to it and filed a representation requesting to approve the recommendation of opposite parties no.2 and 5 with regard to fixation of his pay at Rs.7,500/- consolidated. Since he received the appointment order on 09.01.1998 and his date of joining to the said post was fixed to 10.01.1998, on the next day he had no time to go to Cuttack, which is about 550 km away, to approach opposite party no.2 for fixation of his consolidated pay. // 4 // 2.2. Since the Revised Scale of Pay, 1998 of the State Government employees became effective from 01.01.1996, as per Finance Department Resolution dated 07.09.1998, his representation should stand modified for determination of his consolidated pay in accordance with the provisions of the OCS (Pension) Rules, 1992. In response to same, opposite party no.1 issued a letter to opposite party no.2 on 08.12.1998 to furnish clear information about the basis of fixation of his consolidated pay and clarify that adequate stress may be given while giving information regarding fixation of his pay at Rs.5000/- and also made a query regarding the basis of the proposed monthly consolidated pay of Rs.7,500/- and under what basis Rs.5000/- was allowed as consolidated. In response to same, opposite party no.5 made a clarification to opposite parties no.2 and 1 in its letter dated 04.01.1999. 2.3. The petitioner made his claim under Rules- 88, 89 and 94 of the OCS (Pension) Rules, 1992 contending that on the date of determination, i.e., 31.07.1993, he had drawn the last basic pay of // 5 // Rs.3,500/-, but when the new Revised Pay Rules, 1998 came into force w.e.f. 01.01.1996, the basic pay against the post, in which the petitioner was continuing before retirement, was fixed at Rs.10,200/- and hence Rs.7,500/- consolidated pay per month is correct and genuine and his claim is in conformity with the office order dated 17.03.1999. Therefore, opposite party no.2, vide letter dated 09.04.1998, recommended the case for payment of fixed consolidated emoluments at Rs.7,500/- per month in favour of the petitioner. 2.4. Prior to issuance of Annexure-7 dated 09.04.1998, the petitioner submitted a letter narrating in detail about the deduction of T.I. during re- employment period, i.e., from 10.01.1998 to 10.01.2000. In the said letter/representation, the petitioner also submitted that after deduction of T.I., which was to the extent of Rs.3,585 at Treasury level, he was only getting Rs.1167/- per month. So, he requested that the loss of T.I. on pension is to be compensated by augmenting the consolidated pay. Basing upon the said representation, opposite party // 6 // no.2 passed order under Annexure-7 dated 09.04.1998. Though he was re-employed, after retirement, on 10.01.1998, and got relieved on 10.01.2000, in these two years, his T.I. on pension were withheld on the plea of re-employment by opposite party no.3 relying on the office memorandum dated 23.03.1977. From the date of re-employment in DAILDP till completion of his tenure in the Department, the petitioner was denied of the T.I. on pension and opposite party no.1 did not agree to pay the petitioner Rs.7,500/- as consolidated pay. Consequentially, he sustained heavy financial loss from both sides i.e. withholding of T.I. and not raising the consolidated pay from Rs.5,000/- to Rs.7,500/-. When he represented to the Treasury Officer, Special Treasury, Jeypore for payment of held over T.I., he wrote to opposite party no.4 requesting him to clarify the matter, which was communicated to the petitioner, vide memo no. 354/99 dated 06.01.1999. 2.5. When the representation of the petitioner for enhancement of his contractual pay was submitted to opposite party no.3, the same was rejected and // 7 // communicated to the petitioner through opposite party no.2. Therefore, the petitioner approached the Odisha Administrative Tribunal, Bhubaneswar, by filing O.A. No.1024 of 2000, which was disallowed, vide order dated 13.05.2002. Hence, this writ petition. 3.
Legal Reasoning
Mr. C.A. Rao, learned Senior Counsel along with Mr. S.K. Behera, learned counsel appearing for the petitioner vehemently contended that since the petitioner was given re-employment after five years of his retirement, i.e., on 31.07.1993 and, as such, the said employment was neither under the State Government nor the Central Government, as per Finance Department office memorandum dated 09.11.1994, clause-4(b) of the Regulation has no application to the case of the petitioner. It is further contended that the OCS (Pension) Rules, 1992 prescribes that prior to the Revised Scale of Pay Rules, those who have been re-employed shall be entitled to the benefit of Revised Scale of Pay Rules during the period of re-employment. Therefore, when the petitioner was re-appointed, his consolidated pay ought to have been fixed at Rs.9,000/-. But the // 8 // Tribunal, without following Rule-89 of the OCS (Pension) Rules, 1992, disallowed the claim of the petitioner, which amounts to non-application of mind. It is further contended that since the benefit admissible to the petitioner is regulated under Rules- 88 & 89 of the OCS (Pension) Rules, 1992, the Finance Department office memorandum dated 09.11.1994 cannot supersede the same and, as such, relying upon administrative instruction, the claim of the petitioner cannot be disallowed. It is further contended that while disallowing the benefit admissible to the petitioner, as communicated vide memo dated 05.04.2000, no reason has been assigned, therefore, the same cannot be sustained in the eye of law. More so, if the similar benefit has been granted to other five categories of employees, who were re-employed after their retirement, denying the said benefit to the petitioner amounts to discrimination and hit by Article 14 of the Constitution of India. To substantiate his contentions, he has relied upon M/s. Shree Ganesh Construction v. State of Orissa, 2016(II) OLR 237; (Smt.) Bharati Das v. State of Orissa, 2020(II) OLR // 9 // 537 and U.P. Raghavendra Acharya v. State of Karnataka, AIR 2006 SC 2145. 4. Mr. S.S. Kanungo, learned Addl. Government Advocate appearing for the State-opposite parties, while justifying the orders impugned passed by the authority as well as the Tribunal, contended that the petitioner retired from service on 31.07.1993 and re- employed on the consolidated pay of Rs.5,000/-, vide office order no.38093 dated 31.12.1997, pursuant to which he joined on 10.01.1998. The petitioner was drawing pension at Special Treasury, Jeypore on the strength of P.P.O No.82127 (supn.). In terms of S.R. 303(1) of the O.T.C. Volume-1, he was required to furnish the details of his employment/re-employment duly verified by the Head of Office, where he was employed/re-employed, once in a year preferably in the pension bill. It is further contended that as per Finance Department office memorandum dated 23.03.1977, T.I. in pension shall be suspended when State Government pensioner is employed/re-employed or absorbed permanently in a State Government or Central Government/ Company/ Corporation // 10 // Undertaking/Autonomous Body or Nationalized Band including R.B.I. or Local Fund. The T.I. in pension shall also be suspended if the petitioner is in receipt of remuneration in any form of consolidated pay, fixed allowances, special pay or honorarium or in any other form. As per clause-4(b) of the Finance Department office memorandum dated 09.11.1994, T.I. on pension shall not be suspended if the petitioner is in receipt of consolidated amount in the form of pay, remuneration honorarium or fixed allowance during the period of re- employment provided the consolidated amount shall not include any element of Dearness Allowance and shall be kept at par with the pre-retirement pay of the pension. The pre-retirement pay of the petitioner is Rs.3500/- and on re-employment the consolidated pay of the petitioner is Rs.5,000/-. Thus, as per the provision contained in the above Government order the action of non-payment of T.I. to the petitioner by the Treasury Officer, Special Treasury, Jeypore is correct. Therefore, the question of release of T.I. to the petitioner does not arise after his re-employment. As such, the Tribunal is well justified in rejecting the // 11 // claim of the petitioner which does not warrant interference of this Court at this stage. 5. This Court heard Mr. C.A. Rao, learned Senior Counsel along with Mr. S.K. Behera, learned counsel appearing for the petitioner; and Mr. S.S. Kanungo, learned Addl. Government Advocate appearing for the opposite parties in hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 6. Based on the pleadings available on record, as well as the rival contentions raised by the learned counsel for the parties, following questions are formulated to be answered in this case:- (1) Whether the authority is well justified in turning down the request made by the petitioner for enhancement of contractual pay from Rs.5,000/- to Rs.7,500/- per month? (2) Whether the petitioner is eligible to get his pensionary benefit as well as T.I. as admissible to him in accordance with law or not? // 12 // 7. The Tribunal, vide order dated 13.05.2002 passed in O.A. No.1024 of 2000, has denied the benefit relying upon the office memorandum dated 09.11.1994 issued by the Finance Department, which reads as follows:- “4(a) T.I. of a pensioner (including a family pension holder) shall be suspended when he/she is employed/re-employed in the the State/Central services/posts under Local Fund or Government/Company Institutions or Industrial or Commercial undertakings or Corporations/Boards of State as well as Central Government or under any other Aided Institutions or Nationalized Banks including Reserve Bank of India or Universities or under any other Society including Cooperative Societies/Cooperative Banks. India and State Bank of (b) T.I. on pension shall not be suspended if the pensioner is in receipt or consolidated amount in the form of pay, remuneration, honourarium or fixed allowances during the the period of re-employment, provided consolidated amount shall not include any element of dearness allowance and shall be kept at par with the pre-retirement pay of the pensioner.” 8. It appears from clause-4(a) & (b) of the office memorandum dated 09.11.1994 issued by the Finance Department, T.I. of a pensioner (including a family pension holder) shall be suspended when he/she is employed/re-employed in the services/posts under the State/Central Government/Company or Local Fund // 13 // Institutions or Industrial or Commercial Undertakings or Corporations/Boards of State as well as Central Government or under any other Aided Institutions or Nationalized Banks including Reserve Bank of India and State Bank of India or Universities or under any other Society including Cooperative Societies/Cooperative Banks and T.I. on pension shall not be suspended if the pensioner is in receipt or consolidated amount in the form of pay, remuneration, honourarium or fixed allowances during the period of re-employment, provided the consolidated amount shall not include any element of dearness allowance and shall be kept at par with the pre-retirement pay of the pensioner. 9. So far as applicability of clause-4(a) of the aforesaid office memorandum is concerned, the same has no relevance to the case of the petitioner, as admittedly the petitioner was re-employed under the Denida project with consolidated remuneration. But the requirement under clause-4(b) of the aforesaid memorandum has to satisfy two conditions, namely, (1) the consolidated amount should not include any element of D.A. and (2) it should be kept at par with the // 14 // pre-retirement pay of the petitioner. Admittedly, the petitioner satisfied the first condition, as his consolidated remuneration did not include any element of D.A. and so far as condition no.2 is concerned, the consolidated remuneration of the petitioner was Rs.5,000/-, which is more than Rs.3,500/-, which was the last pay he was getting on the date of retirement. Applying the said analogy, the Tribunal has rejected the claim of the petitioner. The order of the Tribunal is an outcome of non-application of mind, as because by the time the petitioner got employment on consolidated amount of Rs.5,000/- per month, vide office order dated 31.12.1997, pursuant to which he joined before the Project Director, ILDP, Jeypore on 10.01.1998, Revised Scale of Pay Rules, 1998 had come into force w.e.f. 01.01.1996. Thereby, the basic salary of the petitioner was to be fixed at Rs.10,200/-, for which the claim made for fixing consolidated salary at Rs.7,500/- per month was recommended, when, as a matter of fact, his consolidated amount could have been at Rs.9,000/- per month. Under such circumstance, it can be safely stated that the Tribunal, without applying its mind, has // 15 // disallowed the claim of T.I., which is contrary to clause- 4(b) of the Finance Department office memorandum dated 09.11.1994. 10. It is of relevance to note here that the Governor of Odisha, in exercise of power under Article 309 of the Constitution of India, made a rule to regulate the grant of pension, gratuity and other retirement benefits to the persons on retirement from service in connection with the affairs of the State of Odisha, called “The Odisha Civil Services (Pension) Rules, 1992”. Chapter-XII thereof deals with re-employment of pensioners. Rule-87 deals with definition of ‘pension’. For just and proper adjudication of the case, the relevant rules of the Odisha Civil Services (Pension) Rules, 1992 are quoted below:- “87. Definition-In this chapter, unless, the context otherwise requires: (a) "Pension" means the gross monthly pension or Government's contribution to Contributory Provident Fund and/or other retirement benefits, if any, payable under the Odisha Civil Services (Pension) Rules, 1992 or the relevant Government or body under which the re- employed pensioner was serving prior to his retirement, where pension has been commuted partly or fully, pension means rules of the // 16 // the gross pension payable prior commutation. to (b) "Pre-retirement Pay" means: (i) the pay which was taken into account for calculation of pension; for going on (ii) in case of an officer who retires while on leave or on deputation, the pay that he would have drawn, in this parent cadre but leave or on deputation, shall be taken as pre-retirement the competent authority pay provided certifies that he would have continued to officiate the post but for his proceeding on leave or on deputation. in 88. Except in case of the Government receipt of non-practicing servants re- allowance either before or after employment, the persons re-employed prior to the date of introduction of the revised scales of pay shall be entitled to the benefit of the revised scales of pay during the period of re-employment. 89. Fixation of pay of re-employed pensioners- (a) Re-employed pensioners shall be allowed to draw pay only in the prescribed scales of pay attached to the posts in which they are re-employed. No protection of the scales of pay of the posts held by them prior to retirement shall be given. (b) (i) In all cases where the pension is fully ignored, the initial pay on re- employment shall be fixed at the minimum of the scale of pay of the re-employed post. the the fixation, initial pay on (ii) In cases where the entire pension and pensionary benefits are not ignored for re- pay employment shall be fixed at the same stage as last pay drawn before retirement. If there is no such stage in the re-employed post, the pay shall be fixed at the stage below that pay. If the maximum of the pay scale in which a pensioner is re- employed is less than the last pay drawn by him before retirement, his initial pay // 17 // shall be fixed at the maximum of the scale of the reemployed post. Similarly, if the minimum of the scale of pay in which a pensioner is re-employed is more than last pay drawn by him before retirement his initial pay shall be fixed at the minimum of the scale of pay of the re-employed post. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed. (c)(i) The re-employed pensioner, in addition to pay as fixed under sub-rule (b) above, shall be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefits. or (ii) Temporary Increase or Dearness Relief of the re-employed pensioner (including a family pension holder) shall be suspended when he/she is employed/re-employed in the services/posts under the State/Central Government/Company Local Fund Institutions or Industrial or Commercial Undertakings or Corporations/Boards of State as well as Central Government or under any other Aided Institutions or Nationalised Banks including Reserve Bank India or of Universities or under any other Society including Societies/Co- operative Banks. India and State Bank of Co-operative Provided that Temporary Increase or Dearness Relief on pension shall not be suspended if the pensioner is in receipt of consolidated amount in the form of pay, fixed remuneration, allowance during re- the consolidated employment, provided amount shall not include any element of dearness allowance and shall be kept at par with the pre-retirement pay of the pensioner w.e.f dtd. 09.11.1994. the period of honorarium or (d) In the case of persons retiring before attaining the age of 55 years and who are of pension/other reemployed, retirement benefits shall be ignored for initial pay fixation to the extent of ₹4000/- w.e.f 01.01.2006 or as shall be notified by forms // 18 // the Government from time to time provided that- (i) in the case of officers drawing pension not exceeding Rs.4000/- p.m. the actual pension. (ii) In other cases-the first ₹4000/- of the pension. The pension for the purpose of this rule means gross pension (pension without deduction of commuted value). Note-The fixation of pay on re- the employment shall be made by Administrative Department in consultation with the Finance Department. 94. Allowances-The drawal of various allowances and other benefits based on pay shall be regulated with reference to the pay that is fixed on re-employment. Pay for these allowances and benefits will be the pay the non- ignorable part of the pension/other forms of retirement benefits.” fixed before deducting 11. From the above definition enshrined in clauses (a) and (b) of Rule-87 with regard to “pension” and “pre-retirement pay”, the position is very clear. Under Rule-88, it is made clear that except in case of the Government servants in receipt of non-practicing allowance either before or after re-employment, the persons re-employed prior to the date of introduction of the revised scales of pay shall be entitled to the benefit of the revised scales of pay during the period of re- employment. This makes it clear that since the petitioner was re-employed on consolidated pay of // 19 // Rs.5000/-, vide office order dated 31.12.1997, pursuant to which he joined on 10.01.1998, i.e., after commencement of the OCS (Pension) Rules, 1992 giving effect to 01.01.1996, he is entitled to get the benefit of revised scale of pay during the period of re-employment. Fixation of pay of re-employed pensioners has been provided under Rule-89 and as per sub-rule (b) (i) thereof, in all cases where the pension is fully ignored, the initial pay on re-employment shall be fixed at the minimum of the scale of pay of the re-employed post. Therefore, after revision of pay scale, if the petitioner is entitled to get fixation of scale of pay at Rs.10,200/-, he is entitled to get consolidated remuneration, but the same has not been paid to the petitioner. Thereby, he was loser, so far as revised scale of pay is concerned, as the consolidated salary was granted to him at Rs. 5000/- per month, even though request for consolidated pay of Rs.7,500/- was made by the petitioner. Therefore, in the name of re-employment, the petitioner cannot be denied the benefit admissible to him in accordance with the OCS (Pension) Rules, 1992. Since the said OCS (Pension) Rules, 1992, which have // 20 // been framed in exercise of the power under Article 309 of the Constitution of India, is statutory and applicable to the petitioner. 12. Much reliance has been placed by the Tribunal on the office memorandum no.38284 dated 09.11.1994, by which the petitioner has been denied the benefit. It is profitable to note that executive instruction or office memorandum issued by the Department cannot supersede the statutory provisions governing the field. 13. In State of Madhya Pradesh v. Municipal Corporation, Indore, AIR 1987 SC 1983 : 1987 Supp. SCC 748, the apex Court held that the Government cannot restrict the operation of statutory rules by issuing executive instruction. The executive instruction may supplement but not supplant the statutory rules. In Palghat Zilla Thandan Sam,udhaya Samrakshna Samiti v. State of Kerala, (1994) 1 SCC 359, the apex Court held that the Government order cannot have the effect of modifying any Statute. In State of Madhya Pradesh v. G.S. Dal Flour Mill, AIR // 21 // 1991 SC 772, the apex Court further held that an executive instruction cannot go against the statutory provision so as to whittle down the effect of such provision. 14. In Subhash Ramkumar Bind v. State of