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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAC) No.1225 of 2018 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Sahadev Jal …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :
Legal Reasoning
Mr. S.K. Swain, Advocate For Opp. Parties : Mr. S. Rath, Addl. Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:11.07.2024 and Date of Order: 11.07.2024 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J. 1. Heard Mr. S.K. Swain, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel for the State. 2. Petitioner has filed the present Writ Petition inter alia with a prayer to quash order dated 01.12.2017, so passed by the O.P. No.1 under Annexure-12 and with a // 2 // direction on the Opp. Parties to allow the petitioner to change his option from 01.01.2006 to 20.02.2006 to come over to Revised Scale of Pay under ORSP Rules, 2008 and to extend all consequential benefit as due and admissible. 2.1. Learned counsel for the petitioner contended that petitioner while continuing in service vide notification dated 28.06.2007 so issued under Annexure-1 by Govt.-O.P. No.1, petitioner was promoted to the rank of Class-1 Junior (Group-A) from the date his junior namely one Garuda Bag was so extended with the benefit vide Notification dated 28.01.2006. It is contended that after availing the benefit of promotion, petitioner retired from Govt. service on attaining the age of superannuation on 31.03.2008. Subsequent to his requirement, Odisha Revised Scale of Pay Rules, 2008 (in short ‘Rules’) was brought into existence vide Govt. of Odisha, Finance Department Notification dated 24.12.2008. Page 2 of 8 // 3 // 2.2. It is contended that as provided under Rule-6 of the ORSP Rules, 2008, though the petitioner was required to give an option, but since the petitioner was not in service by them, he could not avail the said opportunity. Accordingly, placing reliance on the provisions contained under Rule 6 (3) of the Rules, pay of the petitioner was revised w.e.f. 1.01.2006. 2.3. It is contended that subsequent to such extension of benefit, petitioner when came to know that his junior namely Sri Garuda Bag, who was in service during the relevant period of time, has been extended with the benefit with fixation of Higher Scale of Pay, basing on his option so submitted on 31.12.2008 under Annexure-6 series, petitioner represented to Govt.-O.P. No.1 to extend similar benefit as has been extended in favour of his junior vide Annexure-6 series by allowing him to change his option. 2.4. However, it is contended that claim of the petitioner to get the benefit of scale of pay as has been extended in favour of his junior vide Annexure-6 series Page 3 of 8 // 4 // was refused vide impugned communication dated 1.12.2017 under Annexure-12 inter alia with the ground that option once exercised cannot be changed. 2.5. It is contended that in terms of the provisions contained under Rule-6 of ORSP Rules, 2008 petitioner had never submit any option and his pay was revised basing on the provisions contained under Rule-6(3). Rule-6(3) and Rule-6(4) of the Rules reads as follows:- “(3) If the intimation regarding option is not received within the time mentioned in sub- the Government servant shall be rule(1), deemed to have elected to be governed by the revised Pay structure with effect on and from the 1st day of January, 2006. (4) The option once exercised shall be final.” 2.6. It is contended that since the petitioner had no scope to submit any option as the petitioner had already retired by the time the aforesaid rule come into existence nor petitioner had ever submitted any option, petitioner in view of the decision of the Hon’ble Apex Court in the case of Er. Gurcharan Singh Grewal and Ors. Vs. Punjab State Electricity Board and Ors., Civil Appeal Nos.65-67 of 2009 decided on Page 4 of 8 // 5 // 09.01.2009 cannot be denied the salary that has been extended in favour of his junior Garuda Bag, which is not disputed. Hon’ble Apex Court in Para-13 of the said judgment has held as follows:- “13. Something may be said with regard to Mr. Chhabra’s submissions about the difference in increment in the scales which the appellant NO.1 and Sri Shori are placed, but the same is still contrary to the settled principle of law that a senior cannot be paid lesser salary than his junior. In such circumstances, even if, there was a difference in the incremental benefits in the scale given to the appellant No.1 and the scale given to Shri Shori, such anomaly should not have been allowed to continue and ought to have been rectified so that the pay of the appellant No.1 was also stepped up to that of Shri Shori, as appears to have been done in the case of the appellant No.2.” 2.7. It is accordingly contended that the matter be remitted to O.P. No.1 to take a fresh decision on the claim of the petitioner in the light of the decision in the case of Er. Gurcharan Singh Grewal as cited (supra) and by allowing him to change his option as prayed for. 3. Even though notice of the Writ Petition has been issued since 14.05.2018, but no counter affidavit has been filed as yet. However, basing on the materials available on record Mr. S. Rath, learned Addl. Standing Counsel contended that since in terms of the provisions Page 5 of 8 // 6 // contained under Rule-6 of ORSP Rules, 2008, petitioner never submitted his option, his pay was revised w.e.f.01.01.2006 taking recourse to the provisions contained under Rule-6(3). However, it is fairly contended that the petitioner has never exercised any option basing on which, claim of the petitioner was rejected vide the impugned communication dated 01.12.2017. 3.1. It is contended that since the petitioner in terms of the provisions contained under Rule-6, never exercised his option, he was extended with the benefit in terms of Rule-6(3). Therefore, petitioner cannot be permitted to change his option in view provisions contained in Rule-6(3) vis-a-vis 6(4) of the Rules and such claim has been rightly rejected. 4. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner by the time ORSP Rules, 2008 came into operation on 24.12.2008 was already retired w.e.f. 31.03.2008. Therefore, petitioner’s scale of pay was Page 6 of 8 // 7 // revised taking recourse to the provisions contained under Rule-6(3) of the Rules. This Court finds that basing on the option exercised by his junior who was in service by then and which is not disputed, his pay has been revised at a higher rate than that of the petitioner vide Annexure-6 series. Therefore, placing reliance on the decision of the Hon’ble Apex Court in the case of Er. Gurcharan Singh Grewal as cited (supra), this Court is of the view that claim of the petitioner needs re-consideration by O.P. No.1. Therefore, while quashing the rejection available at Annexure-12, this Court remits the matter to O.P. No.1 to take a fresh decision on the claim of the petitioner in the light of the judgment in the case of Er. Gurcharan Singh Grewal as cited (supra). Such a fresh decision as directed be taken within a period of 3 (three) months from the date of receipt of this order. If on such consideration petitioner is found eligible to get the benefit as has been extended in favour of his junior, Page 7 of 8 // 8 // consequential follow up action shall also be taken within the aforesaid time period. 5.
Decision
The Writ Petition is accordingly disposed of. Orissa High Court, Cuttack Dated the 11th July, 2024/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Jul-2024 15:25:04 Page 8 of 8