The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.72 of 2016 Prasad Subudhi …. Petitioner Mr. Indramani Sahoo, Advocate -versus- Principal Secretary to Government, Steel and Mines Department, Odisha, Bhubaneswar and others …. Opposite Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 10.02.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner and learned counsel
Decision
for the State. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “The applicant has prayed the following relief before the Hon’ble Tribunal; (i) Hon’ble Tribunal may kindly admit the application. (ii) Hon’ble Tribunal may kindly be quashed the order No.7255 dated 01.08.2015 at annexure 12 passed by the Respondent No.1. (iii) Hon’ble Tribunal may kindly be directed to the Respondent No.1(Principal Secretary to government steel and mines Department // 2 // Odisha, Bhubaneswar) to reconsider the change of option under ORSP Rules 1985 and 1989 of the applicant. (iv) Hon’ble Tribunal may kindly be directed to the Respondent No.1 and 3 to sanction the financial benefits and payment be made to the applicant within a specific period. (v) Hon’ble Tribunal may kindly passed any other order/orders as deem and feet as per Rules in favour of the applicant.” 4. It is submitted by learned counsel for the petitioner that the Finance Department vide its memorandum dated 22.09.1999 imposed embargo with regard to availing the benefits in particular ORSP Rules 1985 and 1989. Further referring to said memorandum, learned counsel for the petitioner submitted that in para-7, it has been prescribed that the memorandum came into effect from the date of its issue i.e. 22.09.1999 and the case of the petitioner is pending before the Finance Department on the date of issue of the said memorandum, which will be disposed of in accordance with the said memorandum. It is further contended by learned for the petitioner that Office Memorandum of the Finance Department dated 22.09.1999 was challenged before the Odisha Administrative Tribunal in O.A. No.2294 of 1999 (Loknath Tripathy vrs. State) and 276 batch cases, which were taken up together and disposed of vide a common order dated 11.12.02001 with the following observations:- xxx xxx xxx xxx xxx “Hence, adopting a pragmatic approach we would quash paragraph 7 of the Office memorandum dated 22.09.1999 and direct that the cut-off date should be applied not with reference to the date in the Finance Department but with reference to the date of receipt in the office of the Head of Department. To prevent antedated options being transmitted by Head of // 3 // Offices the check list should be accompanied by a declaration by the head of Office that the revised option was actually received in his office before 22.9.1999. Before transmission of cases to the Finance Department the F.A of the Department concerned should furnish a report on the reasons for delay and the stages at which the delay took place and certify whether he is satisfied that the revised option was received in the office of the Head of Department before 22.9.1999.” 5. On perusal of the aforesaid order passed by the Tribunal, it appears that the cut-off date i.e. 22.09.1999 shall be applicable while receiving application, exercising option by the Heads of Department and not by the Finance Department. Learned counsel for the petitioner further contended that the petitioner submitted his application exercising his option to be covered under ORSP Rules, 1985 and 1989 and to come under revised scale by 1990 instead of 01.01.1985, which was accepted in the office of the Director Geology by the Joint Director, Geology South Zone, Berhmapur. Further referring to letter dated 06.07.2011 under Annexure-5, it is submitted by learned counsel for the petitioner that the Director of Geology forwarded the application of the petitioner to the Deputy Secretary to the Government, Department of Steel and Mines for change of option under ORSP Rule, 1985 and1989. The said letter under Annexure-5 contends statement, which includes the name of the present petitioner at Sl. No.5. The said letter also accompanied by a declaration by Heads of Office and the same reveals that the declaration is given that the proposal for change of option under ORSP Rule, 1985 and 1989 received from the petitioner before 22.09.1999. 6. It is further submitted by learned counsel for the petitioner that although the application of the petitioner was submitted, the same // 4 // order accompanied the documents, declaration and clarification by the concerned Heads of Department, the Department of Steel and Mines, Government of Odisha vide order dated 01.08.2015 under Annexure-12 recommending the case of six employees. Out of six employees, case of the two employees, namely, R.K. Mohanta and Smt. M. Pattnaik have been accepted for change of option whereas in respect of other four employees including the present petitioner, their applications were returned. 7. On perusal of the Annexure-12, it does not reveal any ground on which the application of the petitioner has been returned without considering the same. Being aggrieved by letter Annexure-12, the petitioner had initially approached before the Tribunal by filing O.A. No.72 of 2016 and after abolition of the Tribunal, said O.A. has been transferred to this Court. 8. A counter affidavit has been filed on behalf of the State- Opposite Parties, wherein the direction of the Tribunal dated 11.12.2001 has been quoted and referring to the said direction of the Tribunal, it was contended by learned counsel for the petitioner that the application of the petitioner has not been submitted / forwarded before the cut-off date as has been fixed by the Tribunal. 9. Further perusal of the counter affidavit, it appears that the said Opposite Parties has taken ground that the change of option submitted by the petitioner was that the Joint Director, Geology, Berhampur-Opposite Party No.4 was not Heads of the Department as per Finance Department. It has also been stated at para-7 of the memorandum dated 22.09.1999 as has been modified by the Finance Department Memorandum dated 20.05.2009 taking into consideration the order passed by the Tribunal and the cut-off date at // 5 // the level of the Heads of Department has been revised to check misuse and accordingly, it was submitted that no further modification/relaxation of the aforesaid office memorandum is necessary at this juncture. 10. In view of the above, learned counsel for the State submitted that the application of the petitioner was considered by the Steel and Mines Department and it was found that the same was not kept pending at the level of Heads of Department or Finance Department prior to 22.09.1999. As such, proposal submitted, does not send for consideration for change of option as opted for by the petitioner and accordingly, the authorities have not committed any illegality by returning the application of the petitioner without considering the change of option opted by the petitioner. Accordingly, learned counsel for the petitioner submitted that the application is devoid of merit and the same is liable to be dismissed. 11. Having heard learned counsels for the parties, upon careful consideration of the materials placed before this Court, particularly, the Finance Department memorandum dated 22.09.1999 and the order passed by the Tribunal dated 11.12.2001 in O.A. No.2294 of 1999, this Court is of the considered view that the decision to impose the embargo keeping in view the process of the provisions is a policy decision. Therefore, under normal circumstances, this Court is not interfered with the same. However, the office memorandum dated 22.09.1999 having been modified by the Tribunal in para-7 of the O.A. No.2294 of 1999 and 276 batch cases (supra) having been labeled by the Government. Subsequently, taking into consideration the direction of the Tribunal, the case of the petitioner to be considered in the light of the modification. Further, this Court upon // 6 // careful consideration of the application submitted by the petitioner is of the considered view that the same has been submitted on 22.09.1999 before the Joint Director, Geology. Thereafter, the Director, Geology forwarded the same to the Steel and Mines Department vide its letter dated 11.05.2011 under Annexure-5 along with declaration that the same was submitted before the cut-off date i.e. 22.09.1999. In such view of the matter, the Finance Department, Government of Odisha should have considered the case of the petitioner by taking into declaration given by the Joint Director-cum- Heads of office in favour of the petitioner that the application has been submitted prior to the cut-off date as mentioned in the said letter returned by the Director of Geology dated 06.07.2011 under Annexure-5 recommending the case of the petitioner and categorically stating that the application was received before the cut- off date and no delay has been made, the decision under Annexure-12 dated 01.08.2015 communicated to the petitioner by the Deputy Secretary to Government, Department of Steel and Mines appears to be erroneous and the same is unsustainable in law. Further, the said communication dated 01.08.2015 under Annexure-12 has not assigned any reason as to why the application of the petitioner returned while accepting two other officers. 12. In such view of the matter, this Court is of the considered view that the decision under Annexure-12 is unsustainable in law. Therefore, this Court has no hesitation to quash the letter dated 01.08.2015 under Annexure-12 and the same is accordingly quashed. Further, the matter is remanded back to the Opposite Party No.1 to consider the case of the petitioner by taking into consideration the letter dated 06.07.2011 issued by the Director of Geology under // 7 // Annexure-5 and take a decision within a period of eight weeks from the date of production of certified copy of this order. The Opposite Party No.1 shall act upon the same on production of certified copy of this order. 13. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra ) Judge