The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) Nos.20940,21425,24708, 26700, 26702, 26703,26704,26705,26706, 26708,26709,28876 of 2020 and W.P.(C ) Nos.24233, 30728 & 33966 of 2021 In the matter of an application under Articles 226 & 227 of the Constitution of India. Purna Chandra Bag & Others …. Petitioners State of Odisha & Others …. Opposite Parties -versus- For Petitioners :M/s. Subir Palit, Sr.Advocate Pami Rath, Sr.Advocate, Jyanesh Mohanty, Sucheta Gumansingh, Akshaya Ku. Pandey, Sarathi Jyoti Mohanty,Advocates For Opp. Parties :M/s. R.N. Mishra, A.G.A (for Opp. party Nos.1 & 2) P.K. Mohanty,Sr.Counsel (for Opp. Party No. 3) Mr. P.K. Parhi, DSGI along with Mr. M.K.Pradhan, CGC (for Opp. Party No.4) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 05.05.2023 and Date of Judgment: 02.08.2023 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since the issue involve in all these Writ Petitions relates to extension of the benefit of the pay scale in favour of the // 2 // Petitioners who are working as Accountant-cum-Support Staff in different block offices of the State under OPEPA/OSEPA with that of the Accountant working in District Project Office and State Project Office, all the matters were heard analogously and disposed of by the present common order. 2. For the sake of brevity, the Petition in W.P.(C) No.20940 of 2020 was treated as the lead case. 3. It is the case of the Petitioners that for development of primary education in the State of Odisha, Odisha Primary Education Programme Authority was created in the year 1996. The said authority originally named as <OPEPA= was renamed as Orissa School Education Programme Authority i.e. OSEPA. OPEPA was created in the year 1996 under a Central Government Scheme and as per the said Scheme, Government of India, Ministry of Human Resources contributed 60% of the total requirement and balance 40% was contributed by the State of Orissa. Subsequently in the year 2005, the concept Sarva Siksha Abhiyan(SSA) was taken up by OPEPA for smooth functioning of Elementary Education in the State. 3.1. OPEPA was created in terms of the Memorandum of Association so framed for implementation of Primary Education Programme in the State. The object of OPEPA provided under Para-4 of the Memorandum of Association(MOA) stipulates that Page 2 of 18 // 3 // OPEPA shall act as an autonomous and independent body for implementation of the Orissa Primary Education Programme as outlined in the project document published by the Government of Odisha and its revised versions that may be prepared on the basis of joint review from time to time. 3.2. Similarly, the functions of the OPEPA as provided under Paragraph-5 of MOA provides that it is to be undertaken directly by the authority through its staff sponsored/supported by it through other institutions agencies or individuals. As provided under Paragraph-5 (m) OPEPA is to create academic, technical, administrative, managerial and other posts in the Authority and to make payments for the same in accordance with the Rules and Regulations of the Authority. As provided under Paragraph-5(n), OPEPA is to make rules and regulations for conduct of the affairs of the Authority/and add or amend, vary or rescind them from time to time. 3.3. As provided under Paragraph-6 of MOA, the income and property of the Authority however derived shall be applied towards promotion of the objects thereto as set forth in the Memorandum of Association. In respect of the expenditure of the grants made by the Government of Odisha or Govt. Of India to such limitation as these Government may from time to time impose. Page 3 of 18 // 4 // 3.4. As provided under Para-7 of MOA State Government and the Central Government shall jointly appoint one or more persons to review the work and progress of the Authority and to hold enquiries into the affairs thereof and report thereon in such a manner as the Government may stipulate and upon receipt of any such report, the Government may jointly take such action and issue such directions as they may consider necessary in respect of any of the matters dealt within the report and the Authority shall be bound to comply with such directions. In addition, the Central Government or the State Government may at any time issue directives on matters of policy to the Authority and the latter shall be bound to promptly comply with such directives. Where there is divergence of views between the State Government and the Central Government, the views of the Central Government would prevail. 3.5. As provided under Rule-3 of Rules and Regulations of OPEPA, it shall come into force from the date on which OPEPA is registered under the Societies Registration Act as applicable to the State of Orissa. 3.6. As provided under Rule-34 of the Rules & Regulation, it shall be the responsibility of the Executive Committee to endeavour to achieve the objects of the authority and to discharge all its functions. The Executive Committee shall Page 4 of 18 // 5 // exercise all administrative, financial and academic authority in this behalf including powers to create posts of all descriptions and make appointments thereon in accordance with the regulations. Similarly as provided under Rule-35, the Executive Committee shall have under its control the management of all the affairs and funds of the Authority, Rule 36 of the Rules confers power on the Executive Committee, to frame Regulations with the approval of the State Government and to frame bye-laws for the conduct of activities of the Authority in functioning as per its stated objectives. 3.7. As provided under Regulatins-45 of the Rules & Regulation, subject to any specific direction of the Authority and keeping in view the overall advice of the Central Government and the State Government, the Executive Committee shall have powers to frame and amend regulations not inconsistent with these Rules for administration and management of the affairs of the Authority and without prejudice to the generality of these provision such Regulation may provide for the following matters. (i) Service matters pertaining to Officers and staffs including creation of posts, qualifications, selection procedure, service condition, pay and emoluments, disciplinary controls as well as classification, controls and Appeal Rules. 3.8. In order to implement the Rules, guidelines were also framed and as per the said guideline, it was provided that while Page 5 of 18 // 6 // creating the posts and formulating the service and financial conditions, scale of pay in respect of the posts to be created by the Executive Committee shall correspond either to the Central Government or the State Government scale of pay. With the aforesaid provisions as contained under Rule 34 of the Rules & Regulation, the Executive Committee in its 26th meeting held on 16.02.2010 vide item No.9 decided for engagement of Block Level Accountant for BRCs with the condition that the designation of post will be Accountant-cum-Data Entry Operator and qualification as well as consolidated remuneration may be equal for both the Block Level Accountant with that of District Project Office. 3.9. Basing on the decision taken by the Executive Committee in its 26th Meeting held on 16.02.2010 under Annexure-18, Opp. Party No.2 vide letter dt.07.12.2011 under Annexure-1, addressed to Opp. Party No.3, accorded the approval for creation of various contractual posts for strengthening of 314 BRCs to URCs during the year 2011-12. But while issuing such a direction, the post approved by the Executive Committee with the designation Accountant-cum-Data Entry Operator was notified as Accountant-cum-Support staff. Basing on the direction issued under Annexure-1, Collector-cum-Chairman, Sarva Siksha Abhiyan of different districts issued respective advertisements to Page 6 of 18 // 7 // fill up various posts under Sarva Siksha Abhiyan which also includes the post of Accountant-cum-Support staff in BRCs. 3.10. The Petitioners in all these Writ Petitions basing on such advertisement issued by the concerned Collector-cum-Chairman, Sarva Siksha Abhiyan of different districts were duly selected and appointed as Accountant-cum-support Staff with consolidated remuneration of Rs.5,200/-. 3.11. Subsequent to such appointment of the Petitioners as Accountant-cum-Support Staff in different BRCs, the Executive Committee in its proceeding of the 30th meeting held on 06.03.2014 under Annexure-4 vide Item No.6.4 approved to extend the benefit enjoyed by OPEPA employees as per the OPEPA Service Rules & Regulations 1996 to the MIS-cum- Planning Coordinator, Block Level Accountant and Attendant- cum-Watchman at the BRC level. 3.12. In spite of such decision taken by the Executive Committee with regard to extension of the benefit enjoyed by the OPEPA employees in favour of the Block Level Accountant working in different BRCs, though was not extended, but vide Annexure-7 while providing information under R.T.I, it was indicated that all types of leave availed by the employees working under the OPEPA are also applicable to the employees working under block level. When the benefit availed by similarly situated Accountant Page 7 of 18 // 8 // working in the State Project office and District Project office was not extended in favour of the petitioners who were also discharging similar nature of duty on the face of the decision taken by the Executive Committee under Annexure-4 as well as Annexure-18, some of the Block Level Accountant working in different BRCs approached this Court in different Writ Petitions claiming parity of the remuneration with that of the Accountant working in State Project office and District Project office. 3.13. This Court when disposed of the matters with a direction on the Opp. Party No.3 to take a decision on such claim of the Petitioners with regard to payment of equal remuneration, Opp. Party No.3 without proper appreciation of the claim, rejected the same vide order dt.10.07.2020. The said order of rejection is under challenge by the Petitioners in W.P.(C ) No.20940 of 2022. The Petitioners in the other batch of Writ Petitions though have not approached this Court seeking pay parity, but in view of the rejection of similar claim of the Petitioners in W.P(C) No.20940 of 2020, the Petitioners in the connected batch of Writ Petitions have prayed for pay parity with that of the Accountants working in State Project Office and District Project Office.
Legal Reasoning
4. Mr. Subir Palit, learned Senior Counsel appearing for the Petitioners in W.P.(C ) No.20940 of 2020 along with Ms. Pami Page 8 of 18 // 9 // Rath , learned Sr. Counsel appearing for the petitioners in W.P.(C ) No 24708 of 2020 and batch vehemently contended that in view of the guideline framed by the OPEPA in its Memorandum of Association and in view of the decisions taken by the Executive Committee in the proceeding of the 26th meeting held on dt.16.2.2010 under Annexure-18 vide Item No.9 and proceeded of the meeting held under Annexure-4 dt.06.03.2014 vide Item No.6.4, the petitioners who are working as Accountant-cum- Support Staff in different BRCs are eligible and entitled to get the benefit of pay parity with that of the Accountants working in the State Project office and District Project Office. 4.1. Both the learned Sr. Counsels appearing for the Petitioners contended that vide Item No.9 of the proceeding of the meeting held on 16.02.2010 under Annexure-18, the Executive Committee for the purpose of engagement of Block Level Accountant in BRCs, the approved the same with the condition that for the posts of Accountant-cum-Data Entry Operator, the qualification and consolidated remuneration may be equal to those working as Accountants in each District Project Offices. In view of such decision taken by the Executive Committee, Opp. Party No.2 while issuing the communication on dt. 07.12.2011 under Annexure- 1 should not have described said post as Page 9 of 18 // 10 // Accountant-cum-Support Staff in place of Accountant-cum-Data Entry Operator with consolidated remuneration of Rs.5200/-. 4.2. It is contended that because of such wrong committed by the Opp. Party No.2 while issuing Annexure-1, Collector-cum- Chairman, Sarva Siksha Abhiyan of different districts while issuing the advertisement described the post as Accountant-cum- Support Staff with consolidated remuneration of Rs.5200/- per month, while led to discrimination in between the Accountants working in Block Level and District Level as well as State level. 4.3. It is also contended that as provided under Regulation 45(a) of the Rules and Regulation, the Executive Committee shall have the power to create posts, prescribe the qualification, selection, procedure, service conditions, pay and emoluments. The Executive Committee in the proceeding of its 26th meeting held on 16.02.2010 vide Item No.9, while deciding for engagement of Block Level Accountant for BRCs, approved that the designation of the post will be Accountant-cum-Data-Entry Operator and the qualification and consolidated remuneration may be equal to those working as Accountants in each District Project Office. 4.4. It is also contended that in view of the decisions taken by the Executive Committee in its 26th meeting held on 16.02.2010, the remuneration to be paid to the Block Level Accountant Page 10 of 18 // 11 // should be equal to those working as Accountants in District Project Office. But on the face of such decisions of the Executive Committee taken in its 26th meeting held on 16.02.2010, the remuneration allowed to the petitioners in their capacity as Accountant-cum-Support staff since was not equal to that of the remuneration paid to the Accountants working in State and District Project office, a number of Block Level Accountants approached this Court claiming parity of their remuneration with that of Accountants working in State and District Project Office. Even though this Court directed Opp. Party No.3 to take a decision on the claim, but Opp. Party No.3 without proper appreciation of the same, rejected the claim vide order dt.10.07.2020, which is impugned in W.P.(C ) No.20940 of 2020. 4.5. Learned Sr. Counsels appearing for the Petitioners contended that in view of the provisions contained under Regulatin-45(a) of the 1996 Regulation and the decision taken by the Executive Committee in its 26th meeting as well as 30th meeting held on 16.02.2010 and 06.03.2014 respectively, the petitioners are entitled to get the benefit of pay parity with that of the Accountants working in State and District Project Office. It is also contended that while the Petitioners in all these cases were initially appointed with consolidated remuneration of Rs.5,200/- Page 11 of 18 // 12 // , but the same was subsequently enhanced to Rs.8,049/- in the year 2016 and further enhanced to Rs.12,500/- on 13.03.2020. But similarly situated Accountant working in District and State level are getting higher remuneration than that of the Petitioners. While the Accountants working in the District Project office are getting remuneration of Rs.22,805/- per month and a Peon/Sweeper working in State Project Office with qualification of Matriculation is getting remuneration of Rs.18,873/-, the Petitioners having similar qualification with that of the Accountant working in District Project Office are getting consolidated remuneration of Rs.12,500/- at present. 4.6. It is also contended by the learned Sr. Counsels appearing for the Petitioners that the remuneration paid to the Petitioners is also less than the minimum wages prescribed for High skilled employees of the Government. It is accordingly contended that the Petitioners are eligible and entitled to get the benefit of pay parity with that of the Accountant working in the District Project Office and State Project Office. The rejection of such claim by the Opp. Party No.3 vide order dt.10.07.2020 is therefore not sustainable in the eye of law and liable for interference of this Court. Page 12 of 18 // 13 // 5. Mr. P.K. Mohanty, learned Sr. Counsel appearing for Opp. Party No.3 made his submission basing on the stand taken in the counter so filed in W.P.(C ) No.20940 of 2020. It is contended by the learned Sr. Counsel that the engagement of staff at Block level of OSEPA is different from the engagement of staff of OSEPA working in District Project Office and State Project Office. It is also contended that since the employees working in the District Project Office and State Project Office are getting their salary under the Head <MER= Project, the Petitioners working at the block level are getting their salary under the Head Academic Support’ through BRC/URC within the approved budget of PAB, Government of India. New Delhi. 5.1. It is also contended that the posts held by the Petitioners i.e. Accountant-cum-Support Staff is not similar to that of the Accountants working in the District Project Office and State Project Office. 5.2. It is also contended that without allocation of budget and funds as per the decision of PAB of the Central Government, it is not within the power of Opp. Party No.3 to extend pay parity as claimed by the Petitioners. It is also contended that for payment of remuneration to the employee working under OSEPA while the Central Government is providing 60% of the requirements, State Page 13 of 18 // 14 // Government is providing the balance 40%. Taking into account the funds provided by the Central Government and the State Government @60% and 40%, Opp. Party No.3 is making the payment to the employees working in the State Project Office as well as District Project Office and employees working at the Block level by making necessary allocation of the funds. 5.3. Learned Sr. Counsel accordingly contended that in absence of allocation of required funds by the Central Government as well as by the State Government, the claim of the Petitioners cannot be entertained and it was rightly rejected by Opp. Party No.3 vide order dt.10.07.2020. 6. To the aforesaid submissions of the learned Sr. Counsel appearing for OPEPA/OSEPA, learned Sr. Counsels appearing for the Petitioners in the batch of Writ Petitions contended that in view of the provisions contained under Regulation-45(a) of the 1996 Regulation and the decisions taken by the Executive Committee in its meeting dt. 16.02.2010 and dt.06.03.2014, the stand taken by Opp. Party No.3 is not legally tenable. It is also contended that the decisions taken by the Executive Committee in its 30th meeting dt.06.03.2014 though was carried out in case of employees working in State Project Office and District Project Office, but the same is yet to be implemented in respect of the Page 14 of 18 // 15 // Petitioners who are working at the block level. However, taking into account the fact that the prescribed qualification for engagement of Accountant at block level and that of the Accountant engaged in State level and District level being similar with similar nature of duty, the discrimination meted out to the Petitioners with regard to payment of remuneration, is not only illegal but also violative of Articles 14 & 16 of the Constitution of India.It is accordingly contended that the Petitioners in all these cases are eligible and entitled to get the benefit of pay partiy with that of the Accountants working in District level and State level with quashing of the order of rejection so made by the Opp. Party No.3 vide order dt.10.07.2020 so impugned in W.P.(C ) No.20940 of 2020. 7. I have heard Mr. Subir Palit and Ms. Pami Rath, learned Sr. Counsels along with other counsels appearing for the Petitioners and Mr. P.K. Mohanty, learned Sr. Counsel appearing for Opp. Party No.3. 8. Having heard learned counsel for the parties and after going through the materials available on record, it is found that the Executive Committee in its 26th meeting held on 16.02.2010 though approved for creation of the posts of Accountant-cum- Data Entry Operator to be filled up at the block level, but the said Page 15 of 18 // 16 // post was designated as Accountant-cum-Support Staff by the Opp. Party No.2 while issuing the communication dt.07.02.2011 under Annexure-1. Basing on the said communication though it is not disputed that all the petitioners were engaged as Accountant-cum-Support Staff at the block level pursuant to the advertisement issued by the concerned Collector-cum-Chairman, Sarva Siksha Abhiyan in different districts, but taking into account the qualification prescribed for Accountant at the block level and that of the Accountant engaged in the State Project office and District Project Office, this Court is of the view that the qualification prescribed for engagement of the Accountants at the block level as well as in the district level and State level are similar. It is also found from the record that as per Regulation- 45(a) of the 1996 regulation, it has been clearly provided that the Scale of Pay in respect of the post to be created by the Executive Committee shall correspond either to the Central Government or State Government scale of pay. It is also found from the record that the Executive Committee in its 30th meeting held on 06.03.2014 vide Item No.6.4 also approved to extend the benefit enjoyed by the different employees as per OPEPA Employees Service Rules and Regulations 1996 to the block level Accountant engaged at BRCs level. Page 16 of 18 // 17 // 8.1. Therefore, in view of the provisions contained under Regulation-45(a) of the Rules & Regulation,1996 and the decision taken by the Executive Committee in the proceeding of the 30th meeting held on 06.03.2014, the rejection of the claim of the Petitioners to get the benefit of pay parity with that of the Accountants working in the State level and District level as per the considered view of this Court is not legal and justified. Therefore, this Court is inclined to quash the said rejection made by Opp. Party No.3 vide order dt.10.07.2020, which is impugned in WP(C ) No.20940 of 2020 and quash the same. 8.2. However, taking into account the submissions made by the learned Sr. Counsel appearing for Opp. Party No.3 that unless funds allocated by the Central Government and State Government at the ratio of 60:40% is enhanced suitably, Opp. Party No.3 is not in a position to consider the claim of the Petitioners, this Court while disposing the Writ Petitions directs Opp. Party No.3 to reconsider the demand of the Petitioners and after such reconsideration, Opp. Party No.3 is directed to make necessary demand before the Central Government as well as the State Government for allocation of the required fund as per the available ratio. It is directed that Opp. Party No.3 shall re- consider the demand and make necessary claim before the Page 17 of 18 // 18 // Central Government as well as the State Government for allocation of funds within a period of two (2) months from the date of receipt of this order. It is further directed that on receipt of such demand from Opp. Party No.3, both Opp. Party Nos.2 & 4 shall take a lawful decision with regard to allocation of further fund on such demand so made by Opp. Party No.3 within a period of two(2) months from the date of receipt of such demand. 8.3. Since it is the view of this Court that the Petitioners working at block level are doing similar nature of duty as that of the Accountants working in the District level and State level with similar qualification, the said fact is to be borne in mind by both Opp. Party No.3 as well as by Opp. Party Nos.2 & 4 while taking a decision as directed hereinabove.
Decision
9. All the Writ Petitions are accordingly disposed of. Photocopy of this order be placed in the connected cases. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the, 2nd August, 2023/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: High Court of Orissa, Cuttack Date: 09-Aug-2023 18:04:30 Page 18 of 18