The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.264 of 2017 Padma Charan Pradhan ..... Petitioner Mr. K.C. Sahu, Advocate -versus- 1) State Of Odisha 2) Secretary, Finance Dept. 3) Collector-cum-district Magistrate, Malkangiri ..... Opposite Parties Mr. H.M. Dhal, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 29.04.2024 Order No. 03 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. K.C. Sahu, learned counsel for the Petitioner and Mr. H.M. Dhal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging the rejection of his claim to get the benefit of RACP vide order dtd.08.08.2016 under Annexure-12 and consequential order dtd.29.09.2016 under Annexure-13. 4. Learned counsel for the Petitioner contended that pursuant to the selection process initiated under Annexure-13 on 03.01.1996 Petitioner though was duly selected, but he was provided with the appointment only vide order dtd.02.03.2009 vide Annexure-4, where he joined on 06.03.2009. It is contended that since Petitioner was duly selected in terms of the advertisement issued on 03.01.1996 under Annexure-1, claiming extension of retrospective Page 1 of 6. benefit from the date similarly situated candidates were appointed; Petitioner approached the Tribunal in O.A. No. 1451 of 2011. The Tribunal vide order dtd.08.07.2016 under Annexure-7 while disposing the matter, directed Opp. Parties to treat the applicant to be covered under OCS (Pension) Rules, 1992 and for extension of the benefit as due and admissible. In another Original Application filed by the Petitioner in O.A. No. 543 of 2011, the Tribunal vide order dtd.22.01.2014 under Annexure-8 issued the following direction:- “(i) The pay of the applicant be notionally fixed w.e.f. 22.3.1996, i.e. the date on which respondent No.4 was appointed. (ii) The pay of the applicant shall also be notionally fixed by grant of normal annual increments to him treating his date of appointment as 22.3.1996 and also by revising his pay in the revised scale introduced from time to time and he be paid arrears of differential salary. (iii) The seniority of the applicant shall be fixed according to his position in the redrawn merit list and the gradation list. (iv) The applicant shall also be included in the GPF scheme which benefit has been extended to respondent No.4. (v) The applicant shall also be entitled to pension according to OCS (Pension) Rules, 1992 at par with respondent No.4. (vi) The applicant shall not, however, be entitled to arrears of salary for the period prior to his actual joining service i.e. 6.3.2009.” Page 2 of 6. 4.1. It is contended that pursuant to the order passed by the Tribunal vide order dtd.13.01.2015 under Annexure-14, the applicant’s pay though was fixed notionally w.e.f.22.03.1996, but the said date was not taken as the date of appointment of the Petitioner while considering the claim of the Petitioner to get the benefit of ACP/RACP. 4.2. It is contended that since pay of the Petitioner was notionally fixed w.e.f.22.03.1996 as found from order dtd.13.01.2015 under Annexure-14, the said date is to be taken as the initial date of appointment of the Petitioner and accordingly Petitioner is eligible to get the benefit of ACP/ RACP in terms of the resolution issued by the Finance Department on 06.02.2013. But by holding the date of joining of the Petitioner as 06.03.2009 in terms of Annexure-4 order, claim of the Petitioner to get the benefit of ACP/RACP was rejected by the Govt. vide order dtd.08.08.2016 under Annexure-12 and consequential order passed by the Collector-Opp. Party No. 3 vide order dtd.29.09.2016 under Annexure-13. 4.3. Learned counsel for the Petitioner placing reliance on the order dtd.13.01.2015, contended that since the date of appointment of the Petitioner has been taken as 22.03.1996, claim of the Petitioner to get the benefit of ACP/RACP is to be considered by taking the said date as the date of initial appointment of the Petitioner and not 06.03.2009 as has been taken in the impugned order under
Decision
Annexure-12. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires interference of by this Court. 5. Even though a counter affidavit has been filed justifying the rejection and it is contended that pursuant to the order passed by the Page 3 of 6. Tribunal on 22.01.2014 in O.A. No. 543 of 2011, Petitioner was extended with the benefit on notional basis w.e.f.22.03.1996, but since Petitioner joined in his service on 06.03.2009 in terms of the order issued under Annexure-4, the said date of joining has been rightly taken as the date of appointment of the Petitioner. While considering the claim of the Petitioner to get the benefit of ACP/RACP since taking into account his date of joining as 06.03.2009, Petitioner was not found eligible to get the benefit of ACP/RACP, the same was rightly rejected by Govt.-Opp. Party No. 1 vide order dtd.08.08.2016 under Annexure-12 and consequential order passed by Opp. Party No. 3 on 29.09.2016 under Annexure- 13. 5.1. However, Mr. Dhal does not dispute the benefit extended in favour of the Petitioner on notional basis by taking his date of appointment as 22.03.1996 vide order dtd.13.01.2015 so available under Annexure-14. 6. To the submission made by Mr. Dhal, learned AGA, learned counsel for the Petitioner contended that persons similarly situated have been extended with the benefit of RACP taking their initial date of appointment as 22.03.1996 vide order under Annexure-17 series. 7. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner though participated in the selection process pursuant to the advertisement issued on 03.01.1996 under Annexure-1, but he was provided with the appointment only vide order dtd.02.03.2009 under Annexure-4 and in terms of the said order Petitioner joined on 06.03.2009. But pursuant to the order passed by the Tribunal on Page 4 of 6. 22.01.2014 in O.A. No. 543 of 2011 under Annexure-8, the date of appointment of the Petitioner was taken as 22.03.1996 and he was extended with the benefit on notional basis vide order dtd.13.01.2015 under Annexure-14. Since Petitioner was extended with the benefit by taking his date of appointment on notional basis w.e.f.22.03.1996 and his pay was accordingly fixed, the said date is to be taken as the date of appointment of the Petitioner for the purpose of sanction of ACP/RACP and not 06.03.2009 as reflected in Annexure-12. 7.1. Placing reliance on the order dtd.13.01.2015 so available under Annexure-14 and the benefit extended in favour of similarly situated persons vide order dtd.02.11.2023 under Annexure-17 series, this Court is inclined to quash order dtd.08.08.2016 so available under Annexure-12 and consequential order passed by Opp. Party No. 3 on 29.09.2016 under Annexure-13. While quashing both the orders, this Court directs Opp. Party No. 3 to take a fresh decision on the claim of the Petitioner to get the benefit of RACP taking his date of appointment as 22.03.1996 as reflected in order dtd.13.01.2015 under Annexure-14. Such a fresh decision as directed be taken within a period of two (2) months from the date of receipt of this order. 7.2. It is further observed that while taking such a fresh decision, relevancy and effect of order dtd.02.11.2023 so passed by Opp. Party No. 3 under Annexure-17 series shall also be taken into consideration. On such consideration if it is found that Petitioner is otherwise eligible to get the benefit, consequential follow up action be taken. Page 5 of 6. 8. With the aforesaid observation and direction, the writ petition is disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 03-May-2024 18:49:35 Page 6 of 6.