The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.1573 of 2019 Surendra Kumar Dash …. Petitioner Mr.P. Mohanty, Advocate -versus- State of Odisha & Others …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 12.01.2024 Order No. 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Addl. Affidavit filed by the Petitioner in Court be kept in record.
Legal Reasoning
3. Heard learned counsel appearing for the Parties. 4. This Writ Petition has been filed by the Petitioner inter alia challenging the rejection of his claim to get the benefit of enhanced remuneration vide
Decision
order dtd.07.02.2019 so issued under Annexure-12. 5. It is the case of the Petitioner that Petitioner while continuing as under Secretary to Govt. in the Department of Home, he retired from service on attaining the age of superannuation on 30.04.2011 i.e. at the age of 58 years. // 2 // 5.1. It is contended that the Petitioner vide order dtd.09.08.2017 under Annexure-2 was engaged as a Consultant with monthly remuneration of Rs.15,000/- for a period of one year. In terms of the office order dtd.09.08.2017 under Annexure-2, Petitioner joined as a Consultant on 10.08.2017 and order of engagement as Consultant expired on 09.08.2018. But just one day prior to his completion of the term, he made an application before the Government-Opposite Party No.2 on 08.08.2018 under Annexure-5 inter alia claiming that in terms of the Finance Department Office Memorandum issued on 17.03.2018 vide Annexure-4, Petitioner is entitled to get revision of his remuneration from Rs.15,000/- to Rs.30,000/- for the period from 1.10.2017 to 09.08.2018. 5.2. It is contended that while the claim of the Petitioner so made under Annxure-5 was pending, he was again engaged for a further period of 6 months as a Consultant vide order dtd.20.09.2018 under Annexure-6 with monthly remuneration of Rs.15,000/-. 5.3. It is contended that on receipt of order dtd.20.09.2018 under Annexure-6, though the Petitioner joined on 24.09.2018, but it was a conditional one and with the condition that his remuneration be revised to Rs.30,000/- per month in terms of Finance Department Office Memorandum dtd.17.03.2018. 5.4. It is contended that Petitioner while continuing in terms of the order under Annexure-6, he was disengaged Page 2 of 7 // 3 // vide office order dtd.08.03.2019 under Annexure-8. But prior to termination of his contract, the impugned order was communicated to him inter alia on the ground that Petitioner since is continuing as a consultant violating the guidelines issued by the General Administration Department dtd.27.08.2014, Petitioner is not eligible and entitled to get the enhanced remuneration as claimed in his representation under Annexures-5 or Annexure-7. 5.5. Learned counsel for the Petitioner contended that since in terms of the Finance Department Resolution so issued on 17.03.2018, Petitioner became entitled to get consolidated remuneration of Rs.30,000/- w.e.f. 01.10.2017, Petitioner is eligible and entitled to get the enhanced remuneration @ Rs. 30,000/- per month w.e.f. 01.10.2017 to 09.08.2018 and again from 20.09.2018 to 08.03.2019. It is accordingly contended that the impugned rejection so issued by the Government under Annexure-10 is not sustainable in the eye of law. 6. Mr. S.K. Samal, learned Addl. Government Advocate for the State contended that on the other hand made his submission basing on the stand taken in the counter affidavit. Placing reliance on the counter affidavit, learned Addl. Government Advocate contended that engagement of the consultant after retirement is governed by the Resolution issued by the G.A. Department on 27.08.2014. Para-4 of the Resolution dtd.27.08.2014 is quoted hereunder:- “4. Tenure, Terms and Conditions:- Page 3 of 7 // 4 // (i) The re-employment shall be made initially for a period of two years and can be extended for subsequent period of two years with spells of one year each subject to satisfactory performance up to a total period of four years not beyond the age of 65 years of age in any case or till the posts are filled up by regular process, which is ever is earlier. 6.1. Learned Addl. Government Advocate contended that since Petitioner retired from the service at the age of 58 years on 30.04.2014, by the time he was engaged as a consultant vide order dtd.09.08.2017 under Annexure-2, he had already attained the age of 64 years. Petitioner while submitting his joining in terms of Annexure-2, never raised any objection and he accepted the terms of engagement, which clearly speaks that monthly remuneration will be at Rs. 15,000/- per month. 6.2. It is also contended that once the Petitioner accept the terms of offer and joined without any objection, it amounts to conclusion of the contact and there is no occasion to claim for enhanced remuneration for the period from 09.08.2017 to 09.08.2018. 6.3. It is also contented that by the time the Petitioner was subsequently engaged vide order dtd.20.09.2018 since the Petitioner had already crossed the age of 65 years, in view of Para-4 of the Resolution dtd.27.08.2014, Petitioner was not eligible to continue as he had already attained the age of 65 years by then. 6.4. It is accordingly contended that since Petitioner continued as a consultant contrary to the guidelines issued by the G.A. Department on 27.08.2014 and Page 4 of 7 // 5 // Petitioner never raised any objection for his continuance with monthly remuneration of Rs.15,000/- in terms of the office order issued on 09.08.2017, Petitioner is not eligible and entitled to get the benefit of enhanced remuneration as claimed and the same has been rightly rejected. 7. To the submissions made by learned Addl. Government Advocate, Mr. Mohanty, learned counsel for the Petitioner contended that since by the time the Petitioner was engaged for the first time vide order dtd.09.08.2017, such provision was not there to get the benefit of enhanced remuneration and the same only came into effect w.e.f. 17.03.2018 under Annexure-4, Petitioner had no occasion to raise any objection to the order of engagement issued on 09.08.2017 under Annexure-2. 7.1. It is further contended that on coming across the Office Memorandum issued on 17.03.2018 under Annexure-4, Petitioner represented to Opposite Party No.2 on 08.08.2018 inter alia claiming for payment of enhanced remuneration @ Rs.30,000/- per month for the period from 01.10.2017 to 09.08.2018. It is accordingly contended that the impugned rejection of the Petitioner’s claim requires interference of this Court. 8. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that Petitioner while continuing in service, he retired on attaining the age of superannuation on 30.04.2011. Petitioner for the first time was engaged as a Page 5 of 7 // 6 // consultant vide office order dtd.09.08.2017 and by that time he had already attained the age of 64 years. In the order of engagement issued on 09.08.2017 consolidated remuneration was clearly indicated at Rs.15,000/- per month and Petitioner accepted the offer while joining as a consultant on 10.08.2017. Not only that even though Petitioner raised a grievance to get enhanced remuneration of Rs.30,000/- for the period he continued in terms of the order issued under Annexure-2 by making a representation under Annexure-5, but once again when he was engaged for a further period of six months on 20.09.2018 vide order under Annexure-6 with monthly remuneration of Rs.15,000/-, he submitted his joining on 24.09.2018 by making a claim that his remuneration be revised to Rs.30,000/- per month. Since in terms of the order issued under Annexure-2 Petitioner accepted the offer and joined as a consultant with monthly remuneration of Rs.15,000/-, as per the considered view of this Court, Petitioner is not eligible and entitled to get the benefit of enhanced remuneration for the period he was engaged initially vide office order dtd.09.08.2017. However, in terms of the Office Memorandum issued by the Finance Department on 17.03.2018, Petitioner on the date of his subsequent engagement vide order dtd.20.09.2018 was eligible to get enhanced remuneration of Rs.30,000/- per month. Petitioner since on receipt of the order at Annexure-6, while submitting his joining on 24.09.2018, prayed for revision of his remuneration to Rs.30,000/- per month, Petitioner as per Page 6 of 7 // 7 // the considered view of this Court will be entitled to get enhanced remuneration for the period he continued from 24.09.2018 to 08.03.2019. The order under Annexure-10 is modified to the aforesaid extent. Opposite Party No.2 is directed to calculate the differential remuneration for the period from 24.09.2018 to 08.03.2019 and release the same in favour of the Petitioner within a period of six (6) weeks from the date of receipt of this order. 9. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Jan-2024 11:13:58 Page 7 of 7