The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.13939 of 2024 Balaram Sethy ..... Petitioner -versus- ..... 1) State Of Odisha 2) Director, Health Service, Bbsr 3) Chief Dist. Medical And Public Health Officer, Jagatsinghpur Represented By Adv. - Subhransu Bhusan Mohanty Opposite Parties Represented By Adv. – Mr.S.K.Brahma,ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 02.05.2025 Order No. 06. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : “ It is therefore prayed that, this Hon’ble Court may graciously be pleased :- i) To admit this writ application. To quash ii) the order dated 03.05.2023 and 25.11.2023 issued by Chief District Medical and Public Health Officer, Jagatsinghpur. iii) To direct the Opposite Parties to regularise the service of the Petitioner from 11.08.2004 to 26.09.2012 leave applicable under by sanctioning admissible Page 1 of 10. Odisha Leave Rules and in view of Rule 23(I)(i) of Odisha civil Service Pension Rules, 1992 by crediting those periods of service for the purpose of Revision of pay in the post of MPHW(Male) as well as pension and consequentially revised pay and pension be sanctioned in his favour. And may pass any other order/orders, direction/directions as deem fit and proper in the interest of justice.” 4.
Legal Reasoning
Learned counsel for the Petitioner at the outset contended that the Petitioner, who is a retired Multipurpose Health Worker (Male) and was working under CDMO., Jagatsinghjpur has approached this Court by assailing the Office Order dated 03.05.2023 issued by the C.D.M. & P.H.O., Jagatsinghpur. He further prays to regularise the service period from 11.08.2004 to 26.09.2012 in terms of the Odisha Leave Rule, 1966 by sanctioning medical leave as well as under Rule 23-1(i) of O.C.S.(Pension) Rules, 1992 and sanction and disburse the service and consequential financial benefits in favour of the Petitioner. 5. The factual background in the present Writ Petition, in short, is that the Petitioner, having requisite qualification was initially appointed by the appropriate authority as Peon on 15.01.1987 under Raghunathpur P.H.C.. While continuing as such, the Petitioner successfully passed the HSC Examination in the year 1995. Since the date of his initial appointment till the date of filing of the present Writ Petition, the Petitioner has been sincerely discharging his duty to the satisfaction of the authority and is having an unblemished service career. 6.
Decision
The pleadings contained in the Writ Petition further reveals that on 06.11.1986 a Government Circular was issued wherein Page 2 of 10. 10% posts are reserved for Class IV employees. Such persons who are working in Periphery and who are having qualification of matriculation are to undergo training of Multipurpose Health Workers (MPHE). In view of the aforesaid Government circular dated 06.11.1986, the Petitioner applied to the C.D.M.O., Jagatsinghpur on 11.01.1999 for his promotion from Group-D to Group-C post. The Medical Officer, Raghunathpur C.H.C. recommended the name of the Petitioner to the C.D.M.O., Jagatsinghpur stating therein that the Petitioner is the senior most Class-IV employee and he has possessed matriculation qualification and belongs to the S.C. community. The letter dated 05.07.1996 under Annexure-4 further reveals that the Petitioner was allowed to undergo training for the post of MPHW. Eventuality, the C.D.M.O., Jagatsinghpur recommended the name of the Petitioner on 08.09.1999 under Annexure-5 to the Writ Petition. 7. A further perusal of the Writ Petition reveals that the Joint Director of Health Services, F.W., Orissa issued a letter on 21.06.1996 to all C.D.M.Os instructing them to provide requisite facilities to Class-IV employees working under the Health F.W. Department so that they can be sent to undergo MPHW (Male) training in the session 1996-97. In the year 2012, the Petitioner approached the learned Odisha Administrative Tribunal, Cuttack bench Cuttack by filing O.A.No.3869(C) of 2012 with a prayer to give him promotion to the post of MPHW(Male) against the 10% reservation quota pursuant to the letter dated 06.11.1996. The said Original application was allowed vide order dated 16.09.2016 by directing the respondents to give such promotion to the Petitioner within a period of four months. Although the Page 3 of 10. order passed by the Tribunal on 16.09.2016 was assailed by the State Opposite Parties by filing a Writ Petition before this Court. However, after disposal of the Writ Petition, the order dated 16.09.2016 passed by the learned Tribunal has attained finality. Since the order passed by the Tribunal on 16.09.2016 was not implemented, the petitioner again approached the learned Tribunal by filing C.P.No.97 of 2017. Since the order passed in the aforesaid Contempt Petition was not implemented and in the meantime the Tribunal got abolished, the Petitioner filed a CONTC No.428 of 2020. This Court, vide order dated 29.05.2020, disposed of the said Contempt Petition by directing the Contemnors to implement the order within a period of six weeks. Thereafter, another contempt petition was filed alleging non-compliance of the order passed by the learned Tribunal. 8. Learned counsel for the Petitioner at this stage contended that although the order passed by the learned Tribunal on 16.09.2016 was assailed by the State-Opposite Parties before this Court, the said Writ Petition has been dismissed, against which the State-Opposite Parties preferred a SLP before the Hon’ble Supreme Court and the SLP preferred by the State- Opposite Parties before the Hon’ble Supreme Court was dismissed on 21.01.2021. As such, the order of the learned Tribunal has attained finality in the meantime. 9. While the matter stood thus and after disposal of the SLP by the Hon’ble Supreme Court, the Health & Family Welfare Department, Government of Odisha passed an office order dated 04.09.2021 thereby antedating the date of promotion of the Petitioner to the post of MPHW (Male) against a supernumerary post created with effect from 05.07.1996. The said order dated Page 4 of 10. 04.09.2021 has been annexed as Annexure-13 to the Writ Petition. Finally, by the order of the Directorate of Public Health, Odisha instruction was issued to the CDM & PHO, Jagatsinghpur on 08.09.2021 to promote the Petitioner in the supernumerary post created by the Government for the said purpose. Finally, the CDM & PHO, Jagatsinghpur in compliance of the order passed by the Directorate of Public Health Odisha, promoted the Petitioner and he was posted as MPHW (Male) with the scale of pay attached to such promotional post. 10. While the matter stood thus, the Superintendent, CHC Erasama sought for clarification from the C.D.M. & P.H.O., Jagatsinghpur with regard to fixation of the pay of the Petitioner in the promotional post and for regularisation of service of the Petitioner against the supernumerary post with effect from 05.07.1996. The C.D.M.& P.H.O., Jagatinghgpur issued Office Order on 03.05.2023 by classifying the service of the Petitioner in two spells. One spell would be counted towards the qualifying service and another would not to be considered for qualifying service of the Petitioner. Again, another letter was issued by the C.D.M.& P.H.O., Jagatsinghpur on 25.11.2023 indicating therein that due to extra-ordinary leave from 16.02.2008 to 15.03.2009 and from 17.03.2009 to 26.09.2012, the financial benefits have been given to the Petitioner from 09.03.2013 with date of next increment falling due on 01.03.2014. 11. Learned counsel for the Petitioner further contended that the C.D.M.&P.H.O., Jagatsinghpur issued another letter on 14.12.2023 whereby the annual increment on promotional post of MPHW (M) was from 05.07.1996, by allowing next increment from 01.07.1997 to 01.07.2005 and 01.07.2006 to 01.07.2007. Page 5 of 10. Further, Extraordinary Leave of the Petitioner was also sanctioned. It is also contended that since the increment was allowed for about a period of five years, promotional pay of the Petitioner was proportionately reduced and the Petitioner was getting a lesser scale of pay in comparison to other employees. Learned counsel for the Petitioner further contended that the C.D.M.& P.H.O. has also allowed 1st and 2nd RACP benefits by revising his pay band as well as Grade Pay. 12. Finally, learned counsel for the Petitioner further contended that the Petitioner has retired from service on attaining the age of superannuation on 31.05.2023 from the post of MPHW (M). At the time of his retirement his pay was fixed on the basis of 7th Pay commission recommendation with effect from 01.03.2023. However, the service of the Petitioner and pension amount has been wrongly mentioned without taking into consideration the actual pay which the Petitioner was drawing. He further contended that the Petitioner was extended with the benefit of TBA with effect from 15.01.2002 along with an increment which was sanctioned on 23.08.2005. 13. In the aforesaid context, earlier the Petitioner approached this Court by filing W.P.(C) No.12260 of 2022 for redressal of his grievance with regard to non-sanctioning of revised sale of pension. A coordinate Bench of this Court disposed of the said Writ Petition on 19.05.2022 with a direction to the Opposite Parties to revise the pay of the Petitioner in the post of MPHW (M) from the date 05.07.1996 against the supernumerary post created by the Government. In the meantime the period of absence from service of the Petitioner was regularised by the Government vide Office Order No.1675 dated 03.05.2023 under Page 6 of 10. the Orissa Leave Rules, 1966. Learned counsel for the Petitioner further submitted that in the meantime some other financial benefits have also been extended in favour of the Petitioner. However, a financial benefit has not been considered and sanctioned in favour of the Petitioner. Being aggrieved by such conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present Writ Petition. 14. In course of his argument, learned counsel for the Petitioner referring to the show cause affidavit filed by the Contemnor in CONTC No.1000 of 2023. He submitted that in Paragraph-14 of the show cause affidavit, it has been specifically mentioned that pursuant to the order dated 19.05.2022 passed in W.P.(C) No.12260 of 2022 and with the consent of the Finance Department, an instruction has been issued to the CDM & PHO, Jagatsinghpur vide letter dated 30.08.2022 to comply with the directions of the learned Orissa Administrative Tribunal. Further the CDM & PHO, Jagatsinghpur has been directed to fix the pay of the Petitioner notionally in the post of MPHW(M) with effect from 05.07.1996. Similarly, referring to Paragrph-15 of the Show Cause Affidavit, it was contended that the CDM & PHO, vide letter dated 03.08.2023, has regularised the absence period of the Petitioner under Orissa Leave Rules, 1966. Moreover, subsequent annual increments as well as consequential financial up-gradation, including the fixation of pay under TBA scale and extension of benefit under ORSP Rules, 2008, have been done in favour of the Petitioner. The Show cause Affidavit further reveals that the financial benefits as is due and admissible to the Petitioner on notional fixation of pay in the promotional post from 01.01.2006 till his retirement i.e. on 31.05.2023 are currently Page 7 of 10. under process. The show cause affidavit further reveals provisional pension under the OCS (Pension) Rule, 1992 has already been sanctioned in favour of the Petitioner by the Superintendent, C.H.C., Erasama. Although the Petitioner has approached this Court earlier by filing a Contempt Petition bearing CONTC No.1000 of 2023, however, such Contempt Petition was dropped by granting liberty to the Petitioner to approach this Court by filing a Writ Petition. Hence the present Writ Petition. 15. The State-Opposite Party no.3 i.e. the CDM & PHO, Jagatsinghpur has filed a Counter Affidavit. Learned Additional Standing Counsel, referring to the Counter Affidavit filed by the State Opposite Parties, contended that most of the direction given by the Orissa Administrative Tribunal have already been complied with in the meantime. He further contended that the absence period from service has already been regularised under the Orissa Leave Rules, 1966 basing on the available record. Furthermore, after joining of the Petitioner in the promotional post of MPHW(Male) he has been allowed to draw pay @ Rs.34,000/- in the Level-5/Cell-16 of Pay Matrix under ORSP Rule 2017, and all service benefits have been extended in his favour till his retirement on 31.05.2023. It is also contended that in terms of the Resolution of Finance Department dated 30.10.2012 the Grade Pay of the Petitioner was also enhanced under ORSP Rule, 2008. In the meantime the Petitioner has also been sanctioned with the benefit of provisional pension by taking into account his last pay as Rs.36,100/- and final pension papers have been submitted vide Office Letter No.3458 dated 17.08.2024. Page 8 of 10. 16. Learned Additional Standing Counsel, further referring to Paragraph-14 of the Counter Affidavit, contended that since the Petitioner is not cooperating by submitting his pension papers to the C.H.C., Ersama and not even submitting his pension papers through IFMS portal, the Opposite Parties are finding difficulties to prepare his final pension papers. Consequently, there is delay in sanctioning his final pensionary benefits. On such ground, learned Additional Standing Counsel for the State submitted that the Writ Petition is devoid of merit and the same should be dismissed. 17. Having heard learned counsels for the respective parties, on a careful analysis of the factual position, further taking into consideration all the pleadings of the respective parties, this Court observes that there is no substantial dispute in the present Writ Petition. The present Writ Petition has been filed only to clarify such anomaly which has arisen during implementation of the order passed by the learned Tribunal, which has attained finality in the meantime. According to the Opposite Parties the Petitioner has been regularised by creating a supernumerary post with effect from 05.07.1996 till his retirement from 31.05.2023, and, he has been paid with certain benefits. Basing upon the aforesaid period of service in respect of the supernumerary post, which has been created by the state Government only to accommodate the Petitioner in such post. The Opposite Parties have also not denied the fact that the Petitioner has been given the benefit of promotion to the post of MPHW (Male) and he has been extended with the benefit of regularisation of his absence period, including the grant of provisional pension after his retirement from service. The dispute Page 9 of 10. in the present Writ Petition pertains to the payment of final pension as well as arrear differential dues as is due and admissible to the Petitioner in view of the decision of the government to regularise the Petitioner in the post of MPHW (Male) against a supernumerary post created with effect from 05.07.1996 till his retirement i.e. 31.05.2022. In view of the aforesaid admitted position, this Court deems it proper to dispose of the Writ Petition by directing the Opposite Parties to take necessary steps as expeditiously as possible for preparation of pension papers of the Petitioner and extension of final pension to him within a period of two months. The Petitioner is further directed to cooperate with the authority for preparation for such pension papers by providing necessary documents required by the authority. It is further directed that so far as the arrear differential dues with effect from 05.07.1996 till his retirement dated 31.05.2023 are concerned, the Opposite Parties shall do the needful to calculate, sanction and disburse the financial benefits in favour of the Petitioner within the aforesaid period of two months. 18. Accordingly, the Writ Petition stands disposed of with the aforesaid observation/direction. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Page 10 of 10. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: High Court of Orissa Date: 05-May-2025 16:04:55