Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.16880 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Harapriya Rout Aged about 65 years Wife of Late Laxmidhar Rout At present residing At: Haladiapada P.O.: Alando, P.S.: Biridi, District: Jagatsinghpur. … -VERSUS- Petitioner 1. State of Odisha represented by The Principal Secretary to Government Health and Family Welfare Department, Bhubaneswar, District:Khurda. 2. Director of Health Services, Odisha, Heads of the Department Building, Bhubaneswar, District: Khurda. 3. Chief District Medical Officer At: Killamaidan P.O.: Buxibazar, Town & District: Cuttack. 4. Accountant General, Odisha At/P.O.: Bhubaneswar District: Khurda. … Opposite parties. W.P.(C) No.16880 of 2023 Page 1 of 51 Counsel appeared for the parties: For the Petitioner : M/s. Santosh Kumar Swain, S.C. Bairiganjan, Advocates For the Opposite parties : Mr. Deba Ranjan Mohapatra, Additional Government Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 07.12.2024 :: Date of Judgment : 07.12.2024 J UDGMENT Assailed in the writ petition is the Order vide File No. HFW-MSI-CASE-0031-2022/3870/H., dated 17.02.2023 passed by the Commissioner-Secretary to Government of Odisha in Health and Family Welfare Department, opposite party No.1, whereby and whereunder the claim of benefit of Time Bound Advancement Scheme under the Odisha Revised Scales of Pay Rules, 1998 with re- fixation of pay under the Odisha Revised Scales of Pay for 1985 and 1989 has been rejected. 1.1. Knocking doors of this Court the petitioner invoked extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, with prayer(s) for grant of following relief(s): W.P.(C) No.16880 of 2023 Page 2 of 51 “It is, therefore, prayed that, this Hon‟ble Court may be graciously pleased to consider the above facts and circumstances and on hearing from both sides be pleased (i) (ii) (iii) to quash the order of Opp. Party No.1 dated the 17.02.2023 under Annexure-14 and direct opposite party No.1, 2 & 3 to make revision of pay of late husband of petitioner under Odisha Revised Scales of Pay Rules, 1985 and 1989 notionally, to grant him benefits of Time Bound Advancement Scale of Pay with effect from 14.07.1996 under the Odisha Revised Scales of Pay Rules, 1998, sanction his annual increments, payable to him for the period from 08.05.1983 to 03.01.1993 notionally and make consequential revision/re-fixation of his pension from 01.05.2008 to till his death, occurred on 11.09.2022 with his all other pensionary dues; to direct to make the opposite party No.1 modification of its letter No.36896 dated 15.07.1994 (treating the period of service of late husband of petitioner from 08.05.1983 to 03.01.1993 as EOL) under Annexure-16 suitably only notionally to the late husband of petitioner keeping in view the letter and spirit of the order of Tribunal under Annexures- 3, 4, 5 & 7 of the case. to direct the opposite party No.1 to 3 to make fixation of family pension of petitioner accordingly, admissible to her from 12.09.2022 with release of all the consequential arrears, with interest within a time period to be specified by this Hon‟ble Court in the interest of justice; And for this act of kindness, the petitioner as in duty bound shall ever pray.” W.P.(C) No.16880 of 2023 Page 3 of 51 Facts: 2. The writ petitioner has made revelation of facts which depict that her husband, Late Dr. Laxmidhar Rout, (hereinafter referred to as “the employee”), appointed as an Assistant Surgeon in the State Medical and Health Services Cadre vide Government Notification No.22577/H, dated 21.07.1980, was posted at Gumagarh Primary Health Centre in the district of Phulbani vide Government of Odisha in Health and Family Welfare Department Notification dated 26.06.1981. 2.1. The employee, while working in the Gumagarh Primary Health Centre, on consideration of his representation(s), was transferred and posted at Raj Nagar Public Health Centre in the district of Cuttack vide Notification dated 02.01.1984 of the Health and Family Welfare Department vice one Dr. Maheswar Parida. However, when he proceeded to join in the said Primary Health Centre, no Medical Officer in the name of Dr. Maheswar Parida was found working there, but one Dr. Abhiram Mohapatra and his wife were working at such place of posting. The employee having found no vacant post of Medical Officer at Raj Nagar Primary Health Centre, reported the same to opposite party No.1 vide his representation dated 10.02.1984 and thereafter on 07.05.1984 he sought modification of said order of W.P.(C) No.16880 of 2023 Page 4 of 51 transfer dated 02.01.1984 so as to be accommodated as Medical Officer at some other place, but none of the authorities paid any heed to. Thus, the employee, having no fault of his own, was kept out of posting by the opposite party Nos.1 and 2. Vide Office Order No.21516, dated 25.05.1987, the opposite party No.2 posted the petitioner as Medical Officer in Sub-Divisional Health Centre, Dova in the district of Mayurbhanj against one vacant post. 2.2. Due to erroneous posting order by the Department, as stated supra, the employee could not join in the Primary Health Centre, Raj Nagar and requested the opposite party Nos.1 and 2 to modify the Notification dated 02.01.1984 for revising his posting, yet the opposite party Nos.1 and 2 did not pay any attention for around three years, whereafter he was posted as Medical Officer at Sub-Divisional Health Centre, Dova in the district of Mayurbhanj. 2.3. In the above circumstances, the employee approached opposite party Nos.1 and 2 praying for modification of order of transfer dated 25.05.1987 posting him at Sub- Divisional Health Centre, Dova in the district of Mayurbhanj and sought for consideration of his case for posting nearer to Cuttack district. As no action was taken by the opposite parties, the petitioner moved the Odisha Administrative Tribunal, Bhubaneswar with an W.P.(C) No.16880 of 2023 Page 5 of 51 application under Section 19 of the Administrative Tribunals Act, 1985, which was registered as O.A.
Decision
No.1817 of 1991, and came to be disposed of vide Order dated 12.12.1991 (Annexure-3), which reads as under: “In this original application under Section 19 of the Administrative Tribunals Act, 1985, petitioner one Dr. Laxmidhar Rout, has approached us for a direction to the appropriate parties to give him a posting without which he is moving in wilderness. By notification dated 26th June, 1981 he was appointed as an Assistant Surgeon in the State Medical and Health Services Cadre and was posted as such at Gumagarh P.H.C. in the district of Phulbani. By order dated 2nd January 1984, he was transferred to Raj Nagar, P.H.C. in the Dist. of Cuttack. It is alleged that when he proceeded to Raj Nagar, he could not join there at there was no vacant post. Thereafter, he made several representation before the competent authority to give him a posting but till date he received no response nor any reply to his representation. We have heard learned Govt. Advocate Sri K.M. Mishra and Sri A.K. Bose learned counsel appearing for the petitioners. Sri Bose agrees that the petitioner shall not claim any salary and/or allowances for the period he remained without any posting but the same should be counted for the purpose of continuity in service and other pensionary benefits. In view of the above concession, we feel that there should not be any objection for giving him a posting immediately specifically at a situation in the State, where several hospitals are without any Doctor working there. The grievance of the W.P.(C) No.16880 of 2023 Page 6 of 51 petitioner being simple, we would like to dispose of this application with a direction to the opposite parties to give the petitioner a posting to consideration of his representation within two months from today. The application is finally disposed of at the stage of hearing on admission.” 2.4. Despite the above direction of the learned Odisha Administrative Tribunal vide Order dated 12.12.1991, when such direction was not carried out, the employee again approached the said Tribunal by way of a contempt petition, wherein notices were issued to the opposite parties therein for filing reply for their alleged violation of direction of the learned Tribunal contained in the Order dated 12.12.1991. Said contempt petition was disposed of on 25.11.1992 with the following Order: failed finally disposed of this application on “We have 12.12.1991. Our direction was simple. It was to give the petitioner a posting who is a doctor. It was conceded on behalf of the petitioner that he shall not claim any salary and allowances for the period he remained without any to understand with such posting. We concession given by a Government servant which normally one does not concede, State Government in the Health and Family Welfare Department have remained callous in giving him a posting. We had observed in our order that hospitals in the State are going without doctors even then Health Department seems to be utter callous in not giving him a posting order to a doctor who is willing to work foregoing his past salary and W.P.(C) No.16880 of 2023 Page 7 of 51 allowances. This order was passed way back on 12.12.1991. Till date the petitioner has not been given any posting. Contempt notice has already been issued. O.Ps. have also not filed any reply to the said notice. At the request of the Standing Counsel Sri Patnaik we allow one month time for implementing our order failing which the Director of Health Services shall appear before us on 05.01.1993 and shall explain as to why suitable action as deemed fit and proper shall not be taken against him. Copy of this order be handed over to learned standing counsel and to the parties.” 2.5. Pursuant to the aforesaid Order dated 25.11.1992 passed by the learned Tribunal in the contempt petition, the employee was given posting in Community Health Centre, Manada in the district of Mayurbhanj vide Order dated 03.01.1993 where he joined on 04.01.1993. 2.6. Subsequently, with respect to regularisation in service, while disposing of M.P. No.2840 of 1993, the learned Odisha Administrative Tribunal taking note of aforesaid fact-situation, issued further direction vide Order dated 13.10.1993 to the Secretary to Government of Odisha in Health and Family Welfare Department to pass appropriate order insofar as regularization of service of the employee. Said Order dated 13.10.1993 stands as follows: “Petitioner pursuant to our order has already been given a posting and in which post he has already joined. He shall W.P.(C) No.16880 of 2023 Page 8 of 51 not be entitled salary and allowances from 08.05.1983 to 03.01.1993 as our direction. But the said period shall count toward the continuity of service. We find that the Director of Health Services, Orissa has moved the Government for necessary sanction to treat that period for continuity in service. Government have not taken any decision the petitioner has for which approached us again in this Misc. Petition. In view of the Director‟s letter and orders passed in our judgment, we direct the Secretary to Government Health and Family Welfare Department to pass appropriate orders to regularize the service of the petitioner within one month from today. In our opinion the for letter of regularization of petitioner’s service appears to be reasonable. M.P. is disposed of finally. Send copies to parties.” the Director, Health Services 2.7. Eventually in pursuance of communication of the Chief District Medical Officer, Cuttack, vide Letter No.14173/CDMO, dated 30.11.202007, the employee, Medical Officer, RFWC, Niali Community Health Centre in the district Cuttack at the age of sixty years got retired from service on 30.04.2008 on attaining the age of superannuation. 2.8. It is alleged that after retirement from service, when post-retirement benefits, like pension, gratuity, leave salary and arrear salary were not released, the employee again had to knock the doors of the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. W.P.(C) No.16880 of 2023 Page 9 of 51 No.924(C) of 2009, which stood disposed of on 27.09.2012 with the following order: “Learned counsel for the applicant and learned Addl. Standing Counsel are present and heard. Learned counsel for the applicant submits that the representation dated 17.04.2008 is still pending. He offers to file the same with a memo today with copy to learned Additional Standing Counsel. He submits that as the representation in the matter is still pending, the matter be referred to the Government for appropriate orders on the said representation. Heard learned Additional Standing Counsel. He points out that as per order No.4 dated 12.12.1994 in O.A. No.1817/91, it has been stated that the applicant himself agreed to forego the salary for the period of absence and the term salary should normally include the increments. He further submits that the order No.36896/H, dated 15.07.1996 has not been impugned in time and hence, applicant is estopped from raising the issue at this point of time. He further states that if any, pending since, 17.04.2008, should have been deemed as disposed of after a period of six months. representation, the However, in view of the submissions made by the learned counsel for the applicant in court today on the basis of the representation dated 17.04.2008 and without going into the merits of the matter, respondent no.1 is directed to dispose of the said representation with appropriate orders, within a period of one month from the date of receipt of these orders taking into account proviso below W.P.(C) No.16880 of 2023 Page 10 of 51 Rule 79(2)1 of the Orissa Service Code unless such representation has already been disposed of earlier. It is made clear here that merits of the matter have not been gone into and the respondent shall be at liberty to pass appropriate orders on merit under intimation to the applicant. With these orders, the O.A. is disposed of.” 2.9. Pursuant to the aforesaid order of the learned Tribunal, opposite party No.1 on consideration of the representation of the employee, vide Order dated 21.03.2013 rejected his claim observing thus: “One Doctor namely Laxmidhar Rout approached before the Hon‟ble Tribunal in O.A. No.924(C)/2009 challenging the inaction of the Government, i.e., in not disbursing the post-retirement benefits like pension, Gratuity, leave salary and arrear salary etc. in his favour. In the said O.A., the applicant further prayed to direct the respondents to fix up his pay in different revised scales of pay as per Rules along with TBA scale of pay etc. and also to pay him provisional 1 a in Sic., Rule 79(b)(2) of the Odisha Service Code. Rule 79(b)(2) stands thus: “The following provisions prescribe the conditions on which service counts for time-scale: increments *** (b) (2) All leave other than extraordinary leave and the period of deputation out of India shall count for increment in the time scale applicable to a post in which Government servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India: Provided that the State Government may direct, subject to such conditions as may be specified, that extraordinary leave taken on account of illness or for any reason beyond the Government servant’s control, or for prosecuting higher scientific and technical studies may be allowed to count for increments under Clause (1) or (2).” W.P.(C) No.16880 of 2023 Page 11 of 51 pension taking into consideration of his most probable total salary at the time of his retirement (i.e.30.04.2008) as per ORSP Rules, 2006, till the O.A. is finalized. *** Whereas, in pursuance of the above direction of the Hon‟ble Tribunal the grievance of the applicant has been thoroughly examined basing on the averments made in the O.A. and it Annexures taking into consideration of his representation dated 17.04.2008 and proviso of the Odisha Service Code provided under Rule 79(b)(2). Whereas, in course of thorough examination following facts came into light: 1. Two disciplinary proceedings were initiated against the applicant under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 vide Government Memorandum No.12874/H, dated 06.04.1999 and No.34281/H, dated 04.10.2002 on the charges like disobedience of Government behaviour, misconduct violating Rules 3 and 4 of Odisha Government Servant Conduct Rules, 1959 and unauthorized and wilful absence. indiscipline orders, 2. Challenging the initiation of above departmental proceedings, the applicant approached before the Hon‟ble Tribunal in O.A. No.1674(C)/2001 and the Hon‟ble Tribunal disposed of the said O.A. in their Order dated 02.01.2004 directing the respondents to initiated the disciplinary proceeding conclude against the applicant within 4 months from the date of the receipt of their order. W.P.(C) No.16880 of 2023 Page 12 of 51 3. In pursuance the above order of the Hon‟ble Tribunal, Government after careful consideration of the written statement of the defence submitted by the applicant and other records of proceeding concluded the above two departmental proceeding vide Govt. Order No.5491/H, dated 24.02.2004 and No.23081/H, the punishment like warning and to treat the absence from 04.03.1999 to 11.07.1999 as leave due and admissible. 27.08.2004 with dated 4. Consequent upon conclusion of disciplinary proceeding, the period of services of the applicant has been regularized by Government, the details of which are enumerated below:- 1. (a) Regularization of the period w.e.f. 26.11.1981 to 15.09.82. I. Sanctioned by Govt. vide G.O. No.49946/H, dt.12.12.1996. (b) 10.08.2002 sanctioned dt.16.08.2008. to 15.12.2002 has been no.19102/H, vide G.O. I. 10.08.02 to 04.11.02, 87 days as EL. II. 05.11.02 to 15.12.02, 47 days as HPL. 2. (a) 10.06.1996 to 19.10.97 sanctioned vide G.O. No.7740/H, dt.18.03.2008 and paid by MO I/c CHC Niali, Cuttack. I. E.L. for a period of 88 days w.e.f. 10.06.96 to 05.09.96 (BDI). W.P.(C) No.16880 of 2023 Page 13 of 51 II. HPL for a period of 100 days w.e.f. 06.09.1996 to 14.12.1996 (BDI). III. EOL for a period of 309 days on private ground w.e.f. 15.12.96 to 19.10.97 (BDI). IV. E.L. for a period of 77 days from to 04.02.99, 06.02.99, 03.02.99 14.02.99 to 16.02.99, 21.02.99, 24.02.99, 26.02.99, 28.02.99 from 01.03.99 to 06.05.99 (BDI). V. HPL for a period of 40 days w.e.f. 07.05.99 to 15.06.99 (BDI). VI. EOL for a period of 26 days on private ground w.e.f. 16.06.99 to 11.07.99 (BDI). (B-04.03.99 to 11.07.99 sanctioned by Government vide G.O. No.7740/H, dated 18.03.08 paid by MO I/c, CHC Niali, Cuttack vide his Bill No. 73, dated 27.08.2010 and No.165, dated 07.11.08 and credited to his saving bank account No.822765296). 5. The applicant is not eligible for TBA under ORSP Rule, 1996 due to EOL from 08.05.1983 to 03.01.1993 sanctioned vide Government Letter No.36896, dated 15.07.1994. E.L. for February, 1999 has also sanctioned by Govt. Order No.7740/H, dt.18.03.08. 6. The applicant is not eligible to get the benefit or re-fixation of pay under revised scale of pay W.P.(C) No.16880 of 2023 Page 14 of 51 7. 8. 9. 1985 & 1989 due to sanction of EOL in his favour from the period from 05.08.83 to 03.01.1993. Provisional pension plus T.I. w.e.f. 01.05.08 to 31.07.10 has been paid to him by the MO I/c CHC Niali, Cuttack vide Bill No.71, dt.20.08.2010. Further the period of services of the applicant for the following period has already sanctioned by Government as mentioned below: (a) Period of leave from 26.11.1981 to 15.09.1982 vide G.O. No.49946/H, dated 12.12.1996. (b) From 08.05.1983 to 03.01.1993 vide G.O. No.36896/H, dated 15.07.1994. (c) to 19.10.1997 & From 10.06.1996 04.03.1999 11.07.1999 to No.7740/H, dated 18.03.2008. from vide G.O. (d) From 10.08.2002 to 15.12.2002 vide G.O. No.19102/H, dated 16.08.2008. The applicant has already been sanctioned with fixation of pay w.e.f. 01.01.1996 under ORSP Rules, 1998 in the scale of pay Rs.6500/- - Rs.10,500/- vide Order No.6285, dated 07.08.1999 of the CDMO, Mayurbhanja, i.e. much prior to the order of the Hon‟ble Tribunal passed on 02.01.2004. His pay under ORSP Rules, 2008 has already been fixed vide Order No.1848, dated 24.12.2012. 10. The applicant has not submitted his pension paper for sanction of final pension in his favour till date. W.P.(C) No.16880 of 2023 Page 15 of 51 11. The services of the applicant has been regularized been sanctioned in his favour after observing the formalities made under Rules 79(b)(2) of Odisha Service Code. increments and has As the above initiatives has already been taken to settle the pending claims of the applicant and at present no further claim is pending before the authority except sanction of final pension, the representation of the applicant deserves no further consideration rather the same is rejected being devoid of merit. Sd/- Principal Secretary to Government Dated 21.03.2013” 2.10. The employee was sanctioned pension by the Office of the Principal Accountant General (A&E), Odisha, Bhubaneswar, opposite party No.4 vide Order dated 24.07.2013. 2.11. Explaining further it is stated that since the Order dated 21.03.2013 of the opposite party No.1 was not communicated to the employee, it could not be challenged before the learned Tribunal within reasonable period in the year 2013. However, it has been clarified by the petitioner that the Order dated 27.09.2012 passed in O.A. No.924(C) of 2009 by the learned Odisha Administrative Tribunal having not been complied with, a contempt petition bearing CONTC No.9(C) of 2013 (arising out of O.A. No.924 (C) of 2009) was filed before W.P.(C) No.16880 of 2023 Page 16 of 51 the learned Tribunal and the same, being renumbered as CONTC (CPC) No.9 of 2013 consequent upon its transfer after abolition of the Tribunal, was disposed of by this Court vide Order dated 23.07.2021. In the said contempt petition, submission was advanced on behalf of the opposite party No.1 that vide Order dated 21.03.2013 he had complied the direction contained in the Order of the learned Tribunal dated 27.09.2012. In view of such submission, this Court disposed of the said contempt petition vide Order dated 23.07.2021 giving liberty to the employee to challenge the same, if he was aggrieved. 2.12. Being aggrieved by Order dated 21.03.2013 passed by opposite party No.1, the employee challenged the same before this Court in W.P.(C) No.5557 of 2022 seeking a direction to opposite party Nos.1 and 2 to release his various service and post-retirement benefits/claims. This Court while disposing of the said writ petition vide Order dated 06.09.2022, passed the following order: “*** 8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that opposite party No.1 while passing the impugned order on 21.03.2013 under Annexure-1 has not taken into consideration the true intent and spirit of the W.P.(C) No.16880 of 2023 Page 17 of 51 direction of the learned Tribunal passed in O.A. No.1817 of 1991 under Annexure-4 to 6. 9. Learned Tribunal in the said order has clearly held that the period of service of the petitioner from 08.05.1983 to 03.01.1993 should be counted for the purpose of continuity in service and for pensionary benefits. 10. Therefore, this Court while remitting the matter to the opposite party No.1 to take a fresh decision on the petitioner‟s claim as made in the writ petition, directs him to follow the direction of the learned Tribunal as contained in its order under Annexures- 4 to 6 in letter and spirit. 11. Since the Petitioner is a retired Medical Officer having retired from service w.e.f. 30.04.2008, this Court directs the opposite party No.1 to take a fresh decision on the claim of the petitioner as made in the writ petition within a period of three (3) months from the date of receipt of this order. 12. Opposite party No.1 is further directed to give a personal hearing to the petitioner and allow him to submit any further document in support of his claim. Petitioner is directed to provide a copy of this order before opposite party No.1 within a period of seven (7) days from the date of receipt of this order and opposite party No.1 is directed to act on the same and comply with the direction within the time stipulated by this Court. 13. The writ petition is disposed of with the aforesaid observation and directions.” W.P.(C) No.16880 of 2023 Page 18 of 51 2.13. In pursuance of Order dated 06.09.2022 passed in W.P.(C) No.5557 of 2022 by this Court, the Office of the Principal, Accountant General (A&E), Odisha, Bhubaneswar through Senior Accounts Officer vide Letter dated 03.11.2022 communicated the opposite party No.1 to do the needful in the light of the observation in the aforesaid writ petition, with a copy thereof to the petitioner, which reads as thus: “Office of the Principal Accountant General (A&E), Odisha, Bhubaneswar. No.SAI-(Pen)-3/C.C./S-2/2022-23/ Dated: To The Principal Secretary to Government Health and Family Welfare Department Bhubaneswar, Khurda-751001. Sub.: W.P.(C) No.5557 of 2022 filed by Dr. Laxmidhar Rout Vrs. State of Odisha & Others. Sir, the O.P. No.1 has not With reference to the subject cited above, it is to state that the Hon‟ble High Court vide order dated 06.09.2022 has disposed of the Writ Petition stating into that consideration the true intent and spirit of the direction of the learned Tribunal passed in O.A. No.1817 of 1991 where the Ld. Tribunal has clearly held that the period of service of the Petitioner from 08.05.1983 to 03.01.1993 should be counted for the purpose of continuity in service and for pensionary benefits. The taken W.P.(C) No.16880 of 2023 Page 19 of 51 Hon‟ble Court has directed the O.P. No.1 to follow the direction of the Ld Tribunal and take a fresh decision on the claim of the Petitioner within a period of three months with further direction to give a personal hearing to the petitioner and allow him to submit any further document in support of his claim. The cause of action in this office will arise only after through Pension the receipt of pension paper Sanctioning Authority with proper sanction as per rules in force. Therefore, it is requested to do the needful in the light of order passed by the Hon‟ble Court within stipulated time period to avoid legal complications. Yours faithfully, Sd/- Sr. Accounts Officer, Odisha” 2.14. On receipt of the copy of Order of this Court dated 06.09.2022 (Annexure-10) and Letter dated 03.11.2022 from the Office of Accountant General, Odisha (Annexure-13), the opposite party No.1 has rejected the claim of the petitioner pertaining to revision of his pay under the Odisha Revised Scales of Pay Rules, 1985 and the Odisha Revised Scales of Pay Rules, 1989 and refused to extend the benefits of Time Bound Advancement Scale of Pay under the Odisha Revised Scales of Pay Rules, 1998 by a cryptic and unreasoned Order dated 17.02.2023, relevant contents of which are extracted hereunder: W.P.(C) No.16880 of 2023 Page 20 of 51 “Government of Odisha Health & Family Welfare Department ORDER File No.HFW-MSI-CASE-0031-2022/3870/H. Dated 17.02.2023 Whereas, Dr. Laxmidhar Rout had filed W.P.(C) No.5557 of 2022 before the Hon‟ble High Court, Orissa challenging the order dated 21.03.2013 passed by the opposite party No.1 under Annexure-1 of the writ petition and with a further prayer to pass fresh order with regard to the period of service rendered from 08.05.1983 to 03.01.1993 and to revise his scale of pay afresh in accordance to ORSP Rules, 1981, 1985, 1989 and 1996. The petitioner has also prayed for TBA scale of pay w.e.f. 14.07.1996 and the benefit of ORSP Rules, 2008 w.e.f. 01.01.2006. *** And whereas, the petitioner has expired on 11.09.2022 as intimated by Smt. Harapriya Rout, Wife of Dr. Laxmidhar Rout representation dated 19.09.2022. So, Personal hearing of the petitioner could not be possible. However, Smt. Rout represented to release pensionary benefits along with all the claims of her Husband. vide her And whereas, as regards to the period of service from 08.05.1983 to 03.01.1993 of the petitioner, it is observed that while the petitioner was continuing at PHC, Gumagarh, in the district of Phulbani, he was deputed to Government Dispensary Harabhanga, erstwhile district of Phulbani (Now under Boudh district) on administrative ground. Instead of joining there, he remained on leave and subsequently his transfer order was modified and posted as LTRMO in DHH, Phulbani where he did not join W.P.(C) No.16880 of 2023 Page 21 of 51 and continued on leave unauthorisedly and went on representing for his transfer to his home district i.e. Cuttack. Considering his representation, he was posted to PHC, Raj Nagar vide this Department Order No.51/H, dated 23.01.1984. Instead of joining in PHC, Raj Nagar, he remained absent unauthorisedly for which it was decided to post him outside Cuttack district as well as to draw departmental proceedings against Dr. Rout. Accordingly, the petitioner was posted to Subsidary Health Centre, Dova in Mayurbhanj district and was charge sheeted for his unauthorised absence. Instead of joining at his new place of posting, the petitioner filed case before the Hon‟ble O.A.T in O.A. No.1817/1991 without disclosing the fact for which the Hon‟ble O.A.T vide their Order No.4, dated 12.12.1991 directed the opposite parties to give the petitioner a posting in consideration of his representation within two months. Further Hon‟ble O.A.T their Order No.9, dated 13.10.1993 in O.A. No.1817/91 directed the Secretary, H&FW Department to regularise the service of the petitioner within one month. He shall not be entitled to salary and allowances for 08.05.1983 to 03.01.1993. But, the said period shall count towards the continuity of service. That keeping in view the Order No.4, dated 12.12.1991 and Order No.7 dated 25.11.1992 passed by the Hon‟ble Tribunal in O.A. No.1817/91, the posting order of the petitioner was modified & he was posted to CHC, Manda, Mayurbhanj where he joined on 04.01.1993. to pass appropriate orders in Assistant And whereas, as recorded in the Service Book, he was appointed Notification No.19199/H, dated 26.06.1981 and joined in service on 14.07.1981. Thereafter, he proceeded on leave from 26.11.1981 to 15.09.1982 which has been sanctioned as Surgeon vide W.P.(C) No.16880 of 2023 Page 22 of 51 EL for 28 days w.e.f. 26.11.1981 to 23.12.1981 and EOL for 266 days w.e.f. 24.12.1981 to 15.09.1982. Further, instead of joining at his place of posting, he remained on unauthorized absence from 08.05.1983. So he has no leave at his credit as on 31.12.1982. That as per the Order No.9, dated 13.10.1993 passed by the Hon‟ble Tribunal in O.A. No.1817/91 and MP No.2840/93, his period of absence w.e.f. 08.05.1983 to 03.01.1993 was this Department Order regularized as EOL vide No.36896/H, dated 15.07.1994 and the said period will count towards pension only. As intimated by the DHS, Odisha, the said period has been counted towards pension. And whereas, service of the petitioner for the period w.e.f. 24.12.1981 to 15.09.1982 and w.e.f. 08.05.1983 to 03.01.1993 has been regularized by sanction of EOL for which the petitioner is not eligible for TBA under ORSP Rule, 1996 and to get benefit of re-fixation of pay under revised scale of pay 1985 & 1989. And whereas, the pension of the petitioner has already been settled by the A.G. (A&E), Odisha, it is incorrect for the petitioner to say that the petitioner‟s service has not been regularized, pension not calculated along with other service benefits. Now, therefore, in view of the facts stated above, the prayer of the petitioner has been complied accordingly and stands disposed of.” 2.15. After disposal of the writ petition being W.P.(C) No.5557 of 2022 vide Order dated 06.09.2022 (Annexure-10), when the direction contained therein for consideration of the plight of the employee afresh by opposite party No.1 W.P.(C) No.16880 of 2023 Page 23 of 51 was pending, death came to the employee, a doctor, unnoticed on 11.09.2022. After obtaining legal heir certificate being issued by the Tahasildar, Biridi on 11.11.2022, the wife of the deceased employee (the petitioner) has approached this Court by way of filing the present writ petition. 2.16. As it appears, before receipt of the Order dated 17.02.2023 of the opposite party No.1 (Annexure-14), the petitioner had made a representation dated 20.02.2023 to the opposite party No.1 requesting him to look into all the claims of her late husband in terms of Order dated 06.09.2022 of this Court passed in W.P.(C) No.5557 of 2022 and do the needful for sanction of family pension. 2.17. The opposite party No.1 on an erroneous approach and misconceived notion having rejected the claim of the petitioner, the instant writ petition has been filed to show indulgence in the Order dated 17.02.2023 (Annexure-14). Hearing: 3. On being noticed, the opposite parties have filed counter affidavit and the petitioner has also filed rejoinder affidavit. Pleadings, being completed and exchanged amongst the counsel for respective parties, on consent of W.P.(C) No.16880 of 2023 Page 24 of 51 counsel for the parties, this matter is taken up for final hearing at the stage of admission. 3.1. Heard Sri Santosh Kumar Swain, learned Advocate for the petitioner and Sri Deba Ranjan Mohapatra, learned Additional Government Advocate for the opposite parties. Rival contentions and submissions: 4. Sri Santosh Kumar Swain, learned counsel appearing for the petitioner submitted that accepting the Order dated 12.12.1991 passed in O.A. No.1817 of 1991 by the Odisha Administrative Tribunal, Bhubaneswar and after conceding to implement such direction by the opposite parties as recorded in Order dated 25.11.1992 in the very said case, it is unbecoming on the part of the opposite party No.1 to defy the same by rejecting the claim of the petitioner for extending the benefit of TBA Scale of Pay under the relevant Odisha Revised Scales of Pay Rules and re-fix the pay. 4.1. Advancing his argument further, Sri Santosh Kumar Swain submitted that, the employee was vigilant throughout and the learned Odisha Administrative Tribunal being appraised of plight of the employee, while observing callous attitude of the opposite parties in giving posting, directed for treating the period for which the petitioner remained “without any posting” as continuity in service including other pensionary benefit. W.P.(C) No.16880 of 2023 Page 25 of 51 Therefore, restricting the petitioner to avail the legitimate dues for the fault of the opposite parties is onerous and violative of the directives including the Order dated 06.09.2022 of this Court in W.P.(C) No.5557 of 2022. 4.2. By referring to a Division Bench Judgment of this Court in Sapan Kumar Banerjee Vrs. State of Odisha, reported at 2012 (II) ILR-CUT 101 Sri Santosh Kumar Swain, learned Advocate vehemently object to the reason assigned in the Order dated 17.02.2023 of the opposite party No.1 and submitted that the tenor of decision making process in arriving at the conclusion therein would tantamount to contemptuous attempt to rake up issue which attained finality in the year 1991 itself. He submitted that once the absence of the petitioner during the period in which the petitioner was not given posting due to laches of the opposite parties, i.e., from 08.05.1983 to 03.01.1993, has been treated to be continuity in service in terms of Order dated 12.12.1991 and the concession as reflected in Order dated 25.11.1992 passed in O.A. No.1817 of 1991, there is no scope or occasion for the opposite party No.1 at this distance of time to deny the effect of such orders. The hell-bent approach of the opposite party No.1 is not above reproach. 4.3. To justify the claim of the petitioner, Sri Santosh Kumar Swain, learned Advocate proceeded further by urging W.P.(C) No.16880 of 2023 Page 26 of 51 that when pay is to be fixed by the appointing authority, the extraordinary leave of the petitioner during 08.05.1983 to 03.01.1993 having not been regularised this Court in Order dated 06.09.2022 while disposing of W.P.(C) No.5557 of 2022 made it clear that while passing the Order dated on 21.03.2013 the opposite party No.1 has not taken into consideration the true intent and spirit of the direction of the learned Tribunal passed in O.A. No.1817 of 1991. Therefore, he strenuously contended that the impugned Order dated 17.02.2023 (Annexure-14) being contrary and runs counter to what has been observed in the Order of this Court read with the Orders of the learned Odisha Administrative Tribunal have attained finality way back in the years 1991 and 1992. As the employee has expired now, and the widow-petitioner is pursuing for increment in the pension by re-fixing the pay in consonance with the TBA Pay Scale of Pay under the Odisha Revised Scales of Pay, he made fervent prayer to lead this case to logical end and give quietus to the matter. 5. Sri Deba Ranjan Mohapatra, learned Additional Government Advocate appearing for the opposite parties would submit that as is apparent from the Order dated 12.12.1991 of the learned Odisha Administrative Tribunal, Bhubaneswar it is unambiguous that the employee had waived his right to claim salary and/or W.P.(C) No.16880 of 2023 Page 27 of 51 allowances for the period he remained without any posting. The impugned Order dated 17.02.2023 clarified the position to the effect that “instead of joining at his new place of posting, the petitioner filed case before the Hon’ble O.A.T in O.A. No.1817 of 1991 without disclosing the fact for which the Hon’ble O.A.T vide their Order No.4, dated 12.12.1991 directed the opposite parties to give the petitioner a posting in consideration of his representation”. The reason ascribed by the opposite party No.1 can also be countenanced by the Office Order No.I.Med.IW-1/92.—36896/H., dated 15.07.1994 issued from the Health and Family Welfare Department, which reads as follows: “Dr. Laxmidhar Rout, Assistant Surgeon is granted E.O.L. from 08.05.1983 to 03.01.1993 as per the judgment of the Odisha Administrative Tribunal. Certified that the period of E.O.L. shall count towards pension only.” 5.1. Such being the position, referring to paragraph 16 of the counter affidavit filed by Additional Secretary to the Government of Odisha in Health and Family Welfare Department the learned Additional Government Advocate submitted that for the unauthorised absence of the employee from 08.05.1983 to 03.01.1993, the petitioner is not eligible to be granted TBA under the Odisha Revised Scales of Pay Rules, 1998 and the W.P.(C) No.16880 of 2023 Page 28 of 51 benefit of re-fixation of pay under the Odisha Revised Scales of Pay Rules, 1985 and 1989. 5.2. Therefore, he urges to dismiss the writ petition. Analysis and discussions: 6. This Court is called upon to decide as to whether the petitioner is entitled to the benefit of Time Bound Advancement under the Odisha Revised Scales of Pay Rules, 1998 and benefit of re-fixation of pay under the Odisha Revised Scales of Pay Rules, 1985 and 1989, as the opposite parties have admitted to have regularised the service of the employee by sanctioning extraordinary leave from 08.05.1983 to 03.01.1993, during which the employee remained without posting. 7. Vide Order dated 12.12.1991, the learned Odisha Administrative Tribunal in O.A. No.1817 of 1991 has made it clear that, “*** the petitioner shall not claim any salary and/or allowances for the period he remained without any posting but the same should be counted for the purpose of continuity in service and other pensionary benefit.” 7.1. On 25.11.1992 further order has been passed in O.A. No.1817 of 1991 to the following effect: “The order was passed way back on 12.12.1991. Till date the petitioner has not been given any posting. Contempt notice Contempt notice has already been issued. O.Ps. W.P.(C) No.16880 of 2023 Page 29 of 51 have also not filed any reply to the said notice. At the request of the Standing Counsel Sri Patnaik we allow one month time for implementing our order failing which the Director of Health Services shall appear before us on 05.01.1993 ***” 7.2. Such being the position, it is unbecoming of an officer in the rank of Commissioner-Secretary to Government to observe in his Order dated 17.02.2023 as follows: “*** Instead of joining at his new place of posting, the petitioner filed case before the Hon‟ble O.A.T. in O.A. No.1817/1991 without disclosing the fact for which their Order No.4, dated the Hon‟ble O.A.T. vide 12.12.1991 directed the opposite parties to give the petitioner a posting in consideration of his representation within two months. ***” 7.3. As if it is the default of the employee, the opposite party No.1 has made such a statement, which appears to be de hors record. His perception is misconceived and does not emanate from record. Record reveals that the propriety and legality of the Orders of the Odisha Administrative Tribunal has never been questioned before the higher Court(s). Thus, the orders of 1991/1992 having attained finality, it is illogical and irrational for the opposite party No.1 to say in the year 2023 that the petitioner has not “disclosed” correct fact. Such observation of the opposite party No.1 is deprecated. W.P.(C) No.16880 of 2023 Page 30 of 51 7.4. It is manifest from the record that the employee could not join the duty at Public Health Centre, Raj Nagar by virtue of Health and Family Welfare Order No.51/H, dated 23.01.1984 as there was no vacant post of surgeon available. This fact was intimated to the opposite party No.1 for modification of transfer order on 23.01.1984. Since no action was taken by the Health and Family Welfare Department, the employee was constrained to approach the learned Odisha Administrative Tribunal, which observed in its Order dated 12.12.1991 that, “*** we feel that there should not be any objection for immediately specifically at a giving him a posting situation in the State, where several hospitals are without any Doctor working there. ***” 7.5. Notwithstanding such observation, the opposite parties have dealt with the case of the employee in cavalier manner and did not give him posting till further orders were passed. As it appears from the said Order dated 12.12.1991 of the Odisha Administrative Tribunal that the employee in order to get engaged to discharge his duty as doctor agreed not to claim salary and/or allowances. From the prayers of the petitioner in the writ petition also such intention emanates inasmuch as notional fixation of pay and the modification/revision of pay accordingly have been prayed for. W.P.(C) No.16880 of 2023 Page 31 of 51 7.6. The employee did not waive his right for increment and the benefits of TBA under the relevant Odisha Revised Scales of Pay Rules before the learned Odisha Administrative Tribunal, but the concession was to forgo arrear salary and allowances in lieu of posting. 8. The Office Order dated 15.07.1994 clearly depicts that the employee is granted extraordinary leave from 08.05.1983 to 03.01.1993 (vide Annexure-A/1 enclosed to counter affidavit of the opposite parties). 8.1. The Order dated 12.12.1991 of the learned Odisha Administrative Tribunal is abundantly clear as broad daylight that even though the employee waives to claim salary and/or allowances for the period he remained without any posting— due to laches of the opposite parties— “the same would be counted for the purpose of continuity in service and other pensionary benefits”. In the counter affidavit sworn to by the Additional Secretary to the Government of Odisha in Health and Family Welfare Department it has been admitted at paragraph 8 that “the period of absence with effect from 08.05.1983 to 03.01.1993 was regularised by way of granting extraordinary leave vide this Department Order No.36896/H, dated 15.07.1994”. Therefore, it goes without saying that the fixation of pay would have to be made giving effect to revision of pay. W.P.(C) No.16880 of 2023 Page 32 of 51 8.2. Taking cognizance of misconception crept in the Order dated 21.03.2013 passed by the opposite party No.1 in rejecting the claim by observing that “the applicant is not eligible for TBA under Odisha Revised Scales of Pay Rules, 1996 due to EOL from 08.05.1983 to 03.01.1993, sanctioned vide Government Letter no.36896, dated 15.07.1994”, which was subject matter of challenge in W.P.(C) No.5557 of 2022, this Court by Order dated 06.09.2022, made categorical observation that the opposite party No.1 has not considered the plight of the employee in true letter and spirit and remitted the matter for fresh consideration. It seems from the impugned Order dated 17.02.2023 (Annexure-14), the opposite party No.1 has remained adamant to deny the claim of the employee. 8.3. As it is evinced from the Pension Payment Order (Annexure-9), the late husband of the petitioner, being appointed on 14.07.1981 and retired on 30.04.2008, is stated to have rendered 26 years, 01 month and 16 days of “net qualifying service”. His last pay drawn, on the basis of which pension is fixed, has been mentioned therein as Rs.21,270/- and the amount of pension has been fixed at Rs.8,057/- from 01.05.2008. 8.4. Since the service of the employee from 08.05.1983 to 03.01.1993 has been regularized as extraordinary leave has been sanctioned vide Government Letter No.36896, W.P.(C) No.16880 of 2023 Page 33 of 51 dated 15.07.1994, he should not have been denied the TBA and other admissible benefits. It is noteworthy that the learned Odisha Administrative Tribunal has directed in the Order dated 12.12.1991 that the period for which the employee was not given posting would be counted for the purpose of continuity in service and other pensionary benefit. 8.5. It is, thus, envisaged in terms of Rule 79(b)(2) of the Odisha Service Code that all leave other than extraordinary leave shall count for increment in the time-scale applicable to a post in which the Government servant would have continued to officiate but for his proceeding on leave; provided that the State Government may direct, subject to conditions as may be specified that extraordinary leave taken for any reason beyond the Government servant’s control may be allowed to count for increments. 8.6. In the instant case since at the place of posting on transfer there was no vacant post available facilitating joining of the employee, the extraordinary leave period sanctioned pursuant to direction of the Odisha Administrative Tribunal vide Order dated 12.12.1991 and 25.11.1992, apparently on account of reason beyond control of the Government servant (husband of the petitioner). In the case of the employee in the present case the learned Odisha Administrative Tribunal W.P.(C) No.16880 of 2023 Page 34 of 51 observed that though he waives claim for salary and/or allowances for the period for which he remained without posting, said period shall be counted for the purpose of continuity in service and other pensionary benefit. Said observation as reflected in the Order dated 12.12.1991 of the Odisha Administrative Tribunal passed in O.A. No.1817 of 1991 has been implemented as recorded in Order dated 25.11.1992. Therefore, it is construed that realising the mistake committed by the Health and Family Welfare Department, the employee was allowed to join the post on 04.01.1993 and as it transpires from Pension Payment Order it seems said period has been counted for the purpose of pensionary benefit. 8.7. It deserves to be observed that once the authorities have counted the period of extraordinary leave during which the employee remained without posting (on the fact that the opposite parties have not given posting against vacant post) for the purpose of continuity in service and other pensionary benefits, the claim as made in the present writ petition cannot be denied. As the period from 08.05.1983 to 03.01.1993 has been sanctioned and stated to be regularised, it presupposes that the absence of the employee on account of circumstances beyond the control of the Government servant has been condoned. Therefore, the Pension Payment Order has clearly W.P.(C) No.16880 of 2023 Page 35 of 51 showed that the employee has rendered 26 years, 01 month and 16 days as “net qualifying service”. 8.8. Rule 77 of the Odisha Service Code specifies that an increment shall ordinarily be drawn as a matter of course unless it is withheld. The authority empowered to make a substantive appointment to the post which a Government servant holds, may, if it considers that the conduct of such Government servant has not been good or that his work has not been satisfactory, withhold an increment from him. There is no other ground provided for withholding such increment. The present case does not fall under any of the events. The employee could not join because of mistake in place of posting. Though the same was brought to the notice of the authority concerned, none paid any heed to. Therefore, this Court is of the considered view that despite the fact that denial of benefit claimed for by the employee/petitioner being noticed in the Order dated 06.09.2022 passed in W.P.(C) No.5557 of 2022, while undertaking fresh decision in the matter, the opposite party No.1 ought to have been more caution and careful in considering the documents on record. The observation of said authority in the Order dated 17.02.2023 (Annexure-14) that “instead of joining at his place of posting he remained on unauthorised absence from 08.05.1983” does not sound logical. To expand, it can be culled out from counter affidavit W.P.(C) No.16880 of 2023 Page 36 of 51 (paragraph 8) as replied by the opposite parties that “Considering his representation, he was posted to Public Health Centre, Raj Nagar, vide Department Order No.51/H, dated 23.01.1984”. However, no material particular has been placed on record by the opposite parties to the averment of the petitioner in the writ petition (paragraph 6) that “he was posted in Public Health Centre, Raj Nagar vide Notification dated 02.01.1984, but unfortunately, due to wrong posting order as stated supra, he could not join in Public Health Centre, Raj Nagar and requested the opposite party Nos.1 and 2 for modification of notification dated 02.01.1984 for his posting in some other place in Cuttack district, but the opposite party Nos.1 and 2 did not pay any heed to that, for more than 3 years”. Having regularised the period for which the employee was not given posting, bereft of concession not to claim for salary and/or other allowances, the authority cannot say that the petitioner/employee would not be entitled to the benefit of TBA under the Odisha Revised Scales Pay Rules. 8.9. Finding similarity with the instant case, this Court feels it apposite to quote from Sapan Kumar Banerjee Vrs. State of Orissa, MANU/OR/0383/2012 = 2012 (II) ILR- CUT 101, wherein a Division Bench taking note of Rule 13 of the Odisha Leave Rules, 1966, held as follows: W.P.(C) No.16880 of 2023 Page 37 of 51 “11. In the light of in the present petition, the circumstance as noted hereinabove, the only question that arises for our is as to consideration whether the office order dated 18.12.2007 under Annexure-9 is in due compliance of the direction issued by the Tribunal or not. In this regard it become necessary at the outset to first of all keep in view the direction issued by the Tribunal in O.A. No.82 of 1986 as noted in Para-2 hereinabove. In the said judgment, a Division Bench headed by the Orissa the Administrative directed reinstatement of the petitioner without making any claims for the period he did not work but directed that he shall be entitled to continuity of service and the period of absence be regularized as per the Leave Rules. In this respect, the impugned office order has been passed under the Orissa Leave Rules, 1966 and Rule 13 thereof is extracted hereinbelow for necessary reference: of Tribunal, learned Chairman „13. (1) Extraordinary leave may be granted to any Government servant in special circumstances: (i) When no other admissible; or leave is by rule (ii) When other leave is admissible, but the Government servant concerned applies in writing for the grant of extraordinary leave. (2) Except in the case of permanent Government servant and a Government servant who has Page 38 of 51 W.P.(C) No.16880 of 2023 rendered not less than 3 years continuous service, the duration of extraordinary leave on any one occasion shall not exceed the following limits, namely: (i) two months; (ii) four months in special cases, where such leave is supported by a medical certificate as required under the rules; (iii) eighteen months where the Government servant is undergoing treatment for— (a) pulmonary tuberculosis either in a recognized sanatorium or at his residence under a tuberculosis specialist recognized as such by the State Administrative Medical Officer concerned; or (b) (c) tuberculosis of any other part of the body by a qualified tuberculosis specialist or a (Chief District Medical Officer) or leprosy in a recognized leprosy, institution, or by a (Chief District Medical Officer) or a specialist in leprosy recognized as such by the State Administrative Medical Officer concerned: Provided that the concession of extraordinary leave up to eighteen months under clause (iii) of this sub-rule shall be admissible only to those in Government servants who have been W.P.(C) No.16880 of 2023 Page 39 of 51 continuous Government service for a period exceeding one year: Provided further that in the case of treatment of pulmonary tuberculosis at the residence, the Government servant shall produce a certificate from a specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry to the leave recommended. (Notification No.5959-Codes-183/70F., dated the 17th February, 1971) (3) Subject to the provision of Rule 14, a Government servant not in permanent employ may be granted during deputation on training extraordinary leave from the date of his relief till the date of resumption of duties on return from training provided that he has completed a minimum period of one year continuous service on the date of deputation and the authority competent to grant the leave is satisfied that such training is necessary for improving the Government servant‟s professional knowledge. (4) Where a Government servant who is not in permanent employ fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such Government servant who is granted a lesser amount of extraordinary the maximum amount admissible remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit up to which he could have been granted leave that W.P.(C) No.16880 of 2023 Page 40 of 51 such leave under these rules, he shall, unless the State Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. (Notification No.44206-C.S. 11-26-73 F., Dt. 1st October, 1973)‟ On a reading of the aforesaid Rule as noted hereinabove, as well as the directions of the Tribunal in O.A. No.82 of 1986, there cannot be any doubt that, the petitioner is entitled to claim for continuity in service and the period of absence was required to be regularized as per the Leave Rules. Hence, it is clear that the said direction of the Orissa Administrative Tribunal has not yet been carried out. Therefore, we are of the considered view that the submissions made by the petitioner in this regard are well based. In the impugned office order dated 18.12.2007 while sanctioning the extraordinary leave for the period of petitioner‟s absence from duty, while, no objection can be raised to the same, yet, the further direction contained therein, holding that the said period of absence would not count as qualifying service for pension and other service benefits, clearly stand, vitiated in view of the direction of the tribunal as noted herein above. 12. Apart from the above, we are also constrained to take note of the manner in which the directions passed by a Division Bench of the Orissa Administrative Tribunal headed by the learned W.P.(C) No.16880 of 2023 Page 41 of 51 Chairman has come to be treated in the impugned order under Annexure-10. The learned Member (Admn.) of the Orissa Administrative Tribunal, rejected the petitioner’s O.A., effectively negating the directions issued by a Division Bench of the Tribunal passed earlier in O.A. No.82 of 1986 and in O.A. No.1586 (C) of 2006. We are constrained to note that the judicial propriety demanded that the learned Member (Admn.) act in due consonance with the earlier directions of the Division Bench of the Tribunal. Judicial discipline demands that judgments of larger Benches are not only binding on Benches with lesser quorum but also must be implemented without in any manner commenting or frustrating the decision of the larger Bench. 13. We are also of the considered view that the reference made by the learned Member, Orissa Administrative Tribunal in the impugned judgment under Annexure- 10, to the judgments of the Hon‟ble Supreme Court in the case of Vijay Singh vs. Union of India, MANU/SC/7162/2007 = 2007 (3) SLR 371 as well as in the case of Lajpat Rai Mehta vs. Secretary, Irrigation and Power, Government of Punjab, MANU/SC/8495/2008 = 2009 (1) SCC (L&S) 647, are of no application to the facts of the present case, since the principle of „No work no pay‟ had already been adopted by the Tribunal in its judgment dated 02.09.1991 passed in O.A. No.82 of 1986. The Tribunal had recorded the concession offered by the petitioner not to claim for payment for the period he did not work. The Tribunal had directed not only reinstatement of the petitioner but also declared the entitlement of “continuity in service” and the said W.P.(C) No.16880 of 2023 Page 42 of 51 direction has been clearly frustrated by passing the impugned office order dated 18.12.2007 under Annexure-9. to the Secretary 14. Apart from the reasons as noted hereinabove, we are also constructed to note herein that while directions had been issued in O.A. No.1586(C) of 2006 dated 5.12.2006, the Government in the Revenue Department had been issued with various directions including to call for the papers from the R.D.C., Collector and from all other persons who should be concerned in the matter and also to allow an opportunity of hearing to the petitioner and had been further directed to pass final orders disposing the pending representation of the petitioner. In course of hearing, the learned counsel for the State was asked to point out as to whether this direction had been complied with and as to whether the Revenue Secretary had passed any order in compliance of the aforesaid direction. this Court 15. Mr. Rath, learned counsel for the State produced containing all the before correspondences including the original service book. The letter dated 14.3.2007 purportedly issued by the Commissioner-cum-Secretary, the Department of Revenue and Disaster Management is extracted herein below. file “Government of Orissa Revenue and Disaster Management Department ORDER Dated, Bhubaneswar, the 14.3.07 No.NGE(C)III-E(Lit)28/2006 10397/R & D.M. W.P.(C) No.16880 of 2023 Page 43 of 51 In pursuant to Order No.5 dtd.5.12.2006 of Hon‟ble O.A.T., Cuttack in O.A. Case No.1586(C)/2006 between Sri Sapan Kumar Banarjee Vrs. Collector, Cuttack and Other, the Commissioner-cum- Secretary, Revenue and Disaster Management careful Department consideration of the representation of the petitioner Sri Sapan Kumar Banerjee as well as the averment made in the O.A. Case, has been pleased to pass the following order: (Respondent No.5) after 1 R.D.C. (Central Division), Cuttack (Respondent No.3) should take immediately steps to finalize the personal claims of Sri Banerjee within 15 days. 2. Collector, Cuttack (Respondent No.1) should take immediate steps to finalize the following personal claims of Sri Banerjee within the above stipulated period. (a) Revision of his pay. (b) Payment of his arrear salary from 02.09.1991 to 03.03.1993 and 36 days salary during service under Athagarh Tahsil along with house rent. (c) Payment of his pending R.C.M. claims, the Collector should also take steps to fix up of his final pension and send the pension paper to A.G. Orissa after finalization of disciplinary proceeding immediately. Action taken in the matter shall be intimated to Govt. and Hon‟ble O.A.T. immediately. W.P.(C) No.16880 of 2023 Page 44 of 51 By Order of Commissioner-cum-Secretary S.K. Mishra Under Secretary to Government” 16. On a plain reading of the aforesaid order, it is clear that the Secretary Revenue Department has not acted in terms of the directions of the Tribunal passed in O.A. No.1586 (C) of 2006. In terms of the said directions, it was incumbent upon the Secretary to call for the records, give an opportunity of hearing to the petitioner and then dispose of the representation. From the aforesaid order, it is clear that the Secretary has not called for any record but has merely directed the R.D.C., Central Division, Cuttack to take steps to dispose of the appeal of the petitioner and further directed the Collector, Cuttack to take immediate steps to finalise the personal claims of the petitioner within the stipulated time. 17. This act on the part of the then Secretary, Revenue Department clearly amounts to abdication of responsibility and/or non-compliance of the direction of the Tribunal. Clearly it was expected that the Secretary Revenue would find the necessary time to call for the record from all concerned and also to afford an opportunity of hearing to the petitioner. It appears from the aforesaid order that none of the steps were undertaken by the Revenue Secretary. We are also constrained to take note of the aforesaid fact to highlight the plight of a common litigant who having succeeded before the Tribunal in the year 1991 continued in the same post without any promotion or revision of salary, right up to his retirement in the year W.P.(C) No.16880 of 2023 Page 45 of 51 2005. We are really concerned that highly placed Government Officials should ensure that an adequate care and caution are shown to comply with the directions of competent Courts of Law in order to ensure that rule of law which is guaranteed under the Constitution of India to every citizen does not remain a mere illusion or distant dream. the 18. Therefore, we are left with no other alternative other than to direct quashing of the judgment dated 26.11.2009 passed by learned Member (Administration), Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1249(C). The Office Order dated 18.12.2007 passed by the Collector, Cuttack under Annexure-9 to the extent that “The aforesaid period will not count as qualifying service for pension and other service benefits” stands quashed and in its place it is held that the said period of absence shall count as qualifying service both for pension and other service benefits. 19. We further direct that all service & financial benefits of the petitioner shall be duly computed in terms of the order passed in O.A. No.82 of 1986 as well as in O.A. No.1586(C) of 2006 and the Collector shall take all necessary steps ensuring (payment to the followings): Fixation of pay scale, (i) (ii) Revised pay scale, (iii) Annual increment, (iv) Promotional benefits, (v) Salary for the period from 02.09.1991 to 03.03.1992, (vi) Gratuity and; W.P.(C) No.16880 of 2023 Page 46 of 51 (vii) All other financial & pensionary benefits in favour of the petitioner positively within a period of three months from today. The writ petition is accordingly allowed.” Conclusion: 9. Perusal of the Order dated 17.02.2023 (Annexure-14) stated to have been passed pursuant to order of remit dated 06.09.2022 passed in W.P.(C) No.5557 of 2022, reveals the following reasons ascribed by the opposite party No.1 for rejecting the claim of the petitioner: i. The employee did not join at place of posting at Raj Nagar. Instead of joining he approached the learned Odisha Administrative Tribunal. ii. He remained on unauthorised absence from 08.05.1983. 9.1. As already discussed in the foregoing paragraphs, the position has been transparent that at Raj Nagar there was no doctor working in the name of Dr. Maheswar Parida, which fact was communicated to the opposite parties. The petitioner could not join there and the authorities did not modify the place of posting. The learned Odisha Administrative Tribunal took note of the fact that in Odisha the hospitals were going without doctors, but the present employee was willing to work and waive salary and/or allowance for the period during W.P.(C) No.16880 of 2023 Page 47 of 51 which he was not given posting. The action of the opposite parties is viewed by the said Tribunal in Order dated 12.12.1991 as callous attitude. The extraordinary leave from 08.05.1983 till 03.01.1993 has been regularised by the Government of Odisha. Therefore, there should not have been any impediment for consideration of extending the benefit of TBA under the relevant Odisha Revised Scales of Pay Rules and to get benefit of re-fixation of pay accordingly. 9.2. When the Health and Family Welfare Department has conceded to implement the said Order dated 12.12.1991, the Commissioner-Secretary in his Order dated 17.02.2023 should not have commented upon that there was non-disclosure of fact which led the learned Odisha Administrative Tribunal to pass Order on 12.12.1991. 9.3. This Court is constrained to observe, therefore, that when the Order dated 12.12.1991 has attained finality, being not challenged before the higher Court(s) and conceded to implement the same as reflected in the Order dated 25.11.1992, judicial propriety demands that the opposite party No.1 should have acted in due consonance with the directions of the Tribunal. As it appears while passing the Order dated 17.02.2023 the opposite party No.1 has ignored to take note of the following observation and direction contained in the W.P.(C) No.16880 of 2023 Page 48 of 51 Order dated 06.09.2022 passed in W.P.(C) No.5557 of 2022: “8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that opposite party No.1 while passing the impugned order on 21.03.2013 under Annexure-1 has not taken into consideration the true intent and spirit of the direction of the learned Tribunal passed in O.A. No.1817 of 1991 under Annexure-4 to 6. 9. Learned Tribunal in the said order has clearly held that the period of service of the petitioner from 08.05.1983 to 03.01.1993 should be counted for the purpose of continuity in service and for pensionary benefits. 10. Therefore, this Court while remitting the matter to the opposite party No.1 to take a fresh decision on the petitioner‟s claim as made in the writ petition, directs him to follow the direction of the learned Tribunal as contained in its order under Annexures-4 to 6 in letter and spirit.” 9.4. It is unimaginable, a Government employee, who has forgone salary for the period he did not work in lieu of getting posting— as is apparent from the narration of facts adumbrated hereinabove that non-consideration of modification of place of posting despite matter was brought to the notice of the appropriate authority gave rise to filing of original application under Section 19 of the Administrative Tribunals Act, 1985— which was for W.P.(C) No.16880 of 2023 Page 49 of 51 the laches and default of the opposite parties, would also be construed to have waived revised pay scale and other pecuniary benefit on the extraordinary leave being regularised/condoned. Nothing is cited nor adduced on record to evince that the Odisha Revised Scales of Pay Rules restricted to grant revised scales of pay under such eventuality. Rather Rules 77 and 78 of the Odisha Service Code read with Rule 13 of the Odisha Leave Rules makes it unequivocal that the extraordinary leave for the events beyond control of the employee could be regularised and in fact, the employee, in the instant case, succeeded in the year 1991, and the State Government implemented the direction of the Odisha Administrative Tribunal by passing effective orders regularising his services. By dint of such action of the opposite parties, the employee continued in the same post without any promotion or revision of salary, right up to his retirement in the year 2008. The Order dated 17.02.2023 passed by the opposite party No.1 ignoring the highlighted observation made by this Court to consider the matter afresh keeping in view letter and spirit of the Order dated 12.12.1991 and 25.11.1992 does appear to be misconceived and misdirected. 9.5. For the reasons stated and discussions made supra, such a clear-cut direction of this Court appears to have W.P.(C) No.16880 of 2023 Page 50 of 51 been flouted by the opposite party No.1 while passing Order dated 17.02.2023. 9.6. Considering the submissions of the counsel for the parties and on perusal of material on record, while holding that the petitioner is eligible to claim as made in respect of the period from 08.05.1983 to 03.01.1993, extraordinary leave being regularized and said period has been considered as “continuity in service”, this Court hereby quashes the Order dated 17.02.2023 (Annexure-14) passed by the opposite party No.1. 9.7. However, it is pointed out at the Bar that before receipt of the impugned Order dated 17.02.2023, the wife of the employee-Dr. Laxmidhar Rout, had made representation dated 20.02.2023, which is stated to be pending before the opposite party No.1. This Court deems it appropriate to request the opposite party No.1 to be considerate while disposing of the representation dated 20.02.2023 within a period of four weeks in the light of discussions made herein above. 10. With the above observation and direction, the writ petition stands disposed of, but there shall be no order as to costs. Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Dec-2024 13:23:40 (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 7th December, 2024//Aswini/MRS/Laxmikant W.P.(C) No.16880 of 2023 Page 51 of 51