Orissa High Court · 2009
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.34311 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 Petitioner. *** Sri Lokanath Mahapatra Aged about 86 years Retired Sanitary Inspector-cum- Multi-Purpose Health Supervisor Son of Late Rama Chandra Mahapatra Resident of PWD Line Udayapath NAC Nayagarh At/P.O./P.S./ District: Nayagarh … -VERSUS- 1. State of Odisha represented through The Commissioner-cum-Secretary to Government of Odisha Health & Family Welfare Department Lok Seva Bhawan At/P.O.: Bhubaneswar District: Khordha. 2. 3. The Director, Public Health, Odisha Heads of Department Building Bhubaneswar, At/P.O.: Bhubaneswar District: Khordha. The Chief District Medical Officer Nayagarh, At/P.O./District: Nayagarh. W.P.(C) No.34311 of 2022 Page 1 of 59 4. 5. The Principal Secretary to Government of Odisha, Finance Department Lok Seva Bhavvan, At/P.O.: Bhubaneswa District: Khordha. The Principal Accountant General (A-E), Odisha At/P.O.: Bhubaneswar District: Khordha … Opposite parties. Counsel appeared for the parties: For the Petitioner : M/s. Umesh Chandra Mahapatra, Pravash Chandra Pramoda Kumar Mahapatra, Dash Prasad Pinaki and Mahapatra, Advocates For the Opposite parties : Mr. Sailaza Nandan Das, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 01.07.2024 :: Date of Judgment : 10.07.2024 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: By way of writ petition under Article 226/227 of the Constitution of India the petitioner seeks to assail the Clarification of the Government of Odisha in Health and W.P.(C) No.34311 of 2022 Page 2 of 59 Family Welfare Department vide Letter No.7878—FW (IW)-243/2016/H, dated 20.03.2017, whereby employees retired prior to 20.12.1997 are denied revised pension by modifying pay structure inasmuch as the cadre was not restructured nor was there uniformity existed between Multi-Purpose Health Supervisor (Male) and Multi-Purpose Health Supervisor (Female) [“MPHS (M)” and “MPHS (F)” respectively for brevity]. THE FACTS PLEADED IN THE WRIT PETITION: 2. The facts, as pleaded in the writ petition, are narrated in a nutshell herein below. 2.1. The petitioner, a retired Sanitary Inspector from Government Service with effect from 30.06.1994 on attaining age of superannuation after having a service period of 34 years, 10 months and 5 days, while working at Public Health Centre, Badapandusar in the District of Nayagarh. Therefore, he claims to be entitled for full Pension and pensionary benefits as he has served for more than 33 years. 2.2. Keeping in view the revisions made by the Government of India, the Government of Odisha appointed Fitment Committee in Finance Department vide Resolution No. 41279—CS-I (P)-15/2008/F., dated 09.09.2008 to examine and recommend revision of pension/family pension of pensioners who retired before 2006 from W.P.(C) No.34311 of 2022 Page 3 of 59 State Government service. Having regard to the recommendations of the Fitment Committee, the State Government have decided to revise the pension/family pension of pre-2006 State Government pensioners/ family pensioner with effect from 01.01.2006 by virtue of the Office Memorandum No.3667—Pen-181/08/F., dated 19.01.2009 issued by the Finance Department, which is reproduced hereunder: “Government of Orissa Finance Department ***** No.Pen-181/08- 3 6 6 7 /F., Dated 19th January 2009 OFFICE MEMORANDUM Sub.: Revision of Pension/Family Pension of pre-2006 Pensioners/Family Pensioners. (A), dated In pursuance of the recommendation of the 6th Central Pay Commission, Government of India have revised the pension / family pension for Pre-2006 Central Government Pensioners / Family Pensioners in OM No-38/37/08-P & P.W Ist September, 2008 of Ministry of Personnel Public Grievance and Pensions (Department of Pension and Pensioners Welfare). Keeping in view the revisions made by Government of India, the State Government in Finance appointed a Fitment Committee Department Resolution No. CS-I (P)-15/2008- 41279/F, dated 9th September, 2008 to examine and recommend revision of pension / family pension of pre-2006 State Government Pensioners / Family W.P.(C) No.34311 of 2022 Page 4 of 59 Pensioners. Having regard to the recommendations of the Fitment Committee, the State Government have been pleased to revise the pension / family pension of pre-2006 State Government Pensioners / Family Pensioners w.e.f. 01.01.2006 in the manner indicated in the subsequent paragraphs. 2. orders will apply These to all Pre-2006 Pensioners/Family Pensioners who were drawing Pension/Family Pension on 31.12.2005 under the Orissa Civil Services (Pension) Rules, 1992. 3. In these orders— (a) (b) ‘Existing Pensioner’ or ‘existing Family Pensioner’ means a pensioner who was drawing/entitled to pension/family pension on 31.12.2005. ‘Existing pension’ means the basic pension inclusive of commuted portion, if any, due on 31.12.2005. It covers all classes of pension under OCS (Pension) Rules, 1992. (c) ‘Existing family pension’ means the basic family pension drawn on 31.12.2005 under OCS (Pension) Rules, 1992. 4. The Pension/Family Pension of existing Pre-2006 Pensioners/Family Pensioners shall be consolidated with effect from 01.01.2006 by adding together— i. Pension/Family Existing multiplying Family Pension by a factor 1.86. by existing Basic Pension/Basic Pension ii. Fitment weightage of 40% of the existing Basic Pension/Basic Family Pension. W.P.(C) No.34311 of 2022 Page 5 of 59 iii. The amount so arrived at shall be regarded as consolidated Pension/Family Pension w.e.f. 01.01.2006. iv. Consolidated Pension/Family Pension so arrived involving fraction of a rupee shall be rounded off to the next higher rupee. 5. Provided that the revised full pension of all Pre-2006 the State Government Pensioners relatable maximum period of qualifying service shall in no case be less than 50% of the minimum of the Pay Band plus the Grade Pay of the revised scale of pay w.e.f. 01.01.2006 for the post last held by the Pensioner on the date of retirement. to 6. Similarly, the Family Pension of all Pre-2006 Family Pensioners shall not be less than 30% of the minimum Pay Band plus Grade Pay in the revised scales of pay w.e.f. 01.01.2006 for the post last held by the Pensioner / deceased Government Servant. 7. However, pension shall be suitably reduced prorata where the pensioner has put in less than the maximum period of qualifying service required for full pension as per the rule applicable to the Pensioner as on the date of his/her superannuation/ retirement. In no case, full pension or proportionate reduced pension or the family pension will be less than Rs.3,500/- per month. The Pensioner/Family Pensioner shall apply to AG(A&E), Orissa for such revision of pension/family pension in the form prescribed at Annexure-I. 8. Since the consolidated pension shall be inclusive of commuted portion of pension, if any, the commuted portion shall be deducted from the said amount W.P.(C) No.34311 of 2022 Page 6 of 59 while making monthly disbursement. Besides, the ex-gratia relief granted in Finance Department O.M No. 56932/F, dated 28th November 1986 shall also be paid in addition to the consolidated pension. 9. The employed or re-employed Pensioners/Family Pensioners are not getting TI on pension at present under the existing orders. In their cases, the pay will be re-fixed w.e.f. 01.01.2006 in terms of Para-4 above with reference to consolidated pension becoming admissible to them. Dearness Relief (TI) beyond 01.01.2006 will, however, not be admissible to the period of employment/re- employment. In other words, they will be entitled for pension/family pension in terms of para-4 above. them during 10. The cases of State Government employees who have in public sector been permanently absorbed undertakings/autonomous bodies will be regulated as follows: (a) Pension: Where the Government Servants on permanent absorption in public sector undertakings/ autonomous bodies continue to draw pension separately from the Government, the pension of such absorbed employees will be up dated in terms of these orders. In cases where the Government Servants have drawn one time lump sum terminal benefits equal to 100 percent of their pensions their cases will not be covered by these orders. (b) Family Pension: W.P.(C) No.34311 of 2022 Page 7 of 59 sector In cases where, on permanent absorption in public undertakings/autonomous bodies, the terms of absorption permit grant of Family Pension under the OCS (Pension) Rules, 1992, the Family Pension in their cases will be updated in accordance with these orders. 11. Where the consolidated Pension/Family Pension in terms of para-4(iii) above works out to an amount less than Rs.3500/-, the same shall be stepped up to Rs.3500/- and to be regarded as Pension/Family Pension w.e.f. 01.01.2006. In case of pensioners who are in receipt of more than one pension, the floor ceiling of Rs.3500/- shall apply to the total of all pensions taken together. 12. Additional Pension: In addition to the Pension/Family Pension calculated in para-4 above the quantum of pension/family pension available to the old Pensioners/Family Pensioners shall be increased w.e.f. 01.12.2008 at the rate indicated in the following table. Age of Pensioners / Family Pensioners From 80 years to less than 85 years From 85 years to less than 90 years From 90 years to less than 95 years From 95 years to less than 100 years 100 years or more Additional quantum of Pension / Family Pension 20% of the basic pension / Family Pension. 30% of the basic pension/ Family Pension. 40% of the basic pension/ Family Pension. 50% of the basic pension/ Family Pension. 100 % of the basic pension/ Family Pension. The amount of additional pension shall be shown the Pension Payment Order. For distinctly Page 8 of 59 in W.P.(C) No.34311 of 2022 in case where a Pensioner/Family example, Pensioner is more than 80 years of age and his/her consolidated Pension/Family Pension in terms of para 4 (i) and (ii) above is Rs.10,000/- p.m. the pension shall be shown as— (i) Basic Pension/ Family Pension (ii) Addl. Pension/ Family Pension = Rs.10,000/- p.m. = Rs. 2,000/- p.m. Similarly, Pension/Family Pension on his/her attaining the age of 85 years shall be shown as— (i) Basic Pension/ Family Pension (ii) Addl. Pension/ Family Pension = Rs.10,000/- p.m. = Rs. 3,000/- p.m. through the age of is available but the age of pensioner/family In cases where pensioner is not available on the PPO, the same shall be obtained from the Pension Issuing Authority the concerned Pension (AG, Orissa) the Sanctioning Authority. Where in Pensioner/Family Pensioner whole years, the date of commencement of additional pension shall take effect from the Ist day of July of that year. If the age of the Pensioner/ Family Pensioner falls in the middle of the month, the same shall be reckoned from the 1st day of the said month. For example, in case the Pensioner/ Family Pensioner completes 80 years of age on 27.03.2009, his age will be reckoned as 80 years w.e.f. 01.03.2009. W.P.(C) No.34311 of 2022 Page 9 of 59 13. Dearness Relief shall also be admissible on the additional pension/family pension available to older Pensioners/Family Pensioners based on their age w.e.f 01.12.2008. the 14. All Pension Disbursing Authorities including Public Sector Banks handling disbursement of Pension/ Family Pension to the State Government pensioners to pay Pension/Family are hereby authorized pension Pensioners/Family existing to Pensioners at the consolidated rates in terms of para-4 above without any further authorization from the concerned Accounts Officers, Head of Office etc. A table indicating the existing Basic Pension/Family the Pension without Dearness Pension and corresponding revised consolidated Pension/Family Pension is enclosed as Annexure-II. 15. The consolidated pension/family pension as worked out in accordance with the provisions of para-4 above shall be treated as final basic pension w.e.f. 01.01.2006 and shall qualify for grant of dearness relief to be sanctioned thereafter. 16. The fact of authorization of the revised rate of Pension/Family Pension shall be recorded in both halves of Pension Payment Order (PPO) under the dated signature of the authorized officer of the concerned District Treasury/Special Treasury/Sub- Treasury/Public Sector Banks. Pension Disbursing Authorities shall intimate the AG, Orissa in a prescribed form as at Annexure-III about such revision for necessary correction in the Pension Payment Order (PPO) Register maintained at the level of AG, Orissa. W.P.(C) No.34311 of 2022 Page 10 of 59 in course of 17. All Pensioners/Family Pensioners shall submit an application to the concerned Pension Disbursing Authority including Public Sector Banks for revision of pension/family pension in a prescribed form as at Annexure-IV. Where fixation of Pension/Family Pension, any amount drawn or received as Basic Pension/Basic Family Pension by the Pensioner/Family Pensioner under any circumstances is found to be in excess of the amount payable to him/her under this Office Memorandum, amount so drawn or received shall be recoverable from such Pensioner/Family Pensioner from his/her pension and Dearness Relief for which he/she shall submit an undertaking to the Pension Disbursing Authority as specified in the same prescribed form. 18. Government have further decided that 40% of the arrear Pension/Family Pension shall be paid in the year 2008-09 and remaining 60% in the year 2009- 10. However, the revised consolidated Pension and Family Pension will be paid from the month of December, 2008. Sd/- (R.N. Senapati) Principal Secretary to Government” 2.3. The Health and Family Welfare Department issued Letter dated 20.06.2014 clarifying the position with the advice of the Finance Department that “the pension of all MPHS (M) who have retired prior to 31.03.2010 is to be enhanced to 50% of the minimum of pay band plus grade pay (Rs.9,300/- plus grade pay Rs.4,200/-), i.e., Rs.6,750 per month plus TI for full qualifying service Page 11 of 59 W.P.(C) No.34311 of 2022 with effect from 01.04.2010”. It has also been clarified that “the of MPHS (M) who are drawing less pension than Rs.6,750/- as on 01.04.2010 will be fixed at Rs.6,750/- on the same date and MPHS (M) who are drawing more will not be affected by it”. Accordingly, public notice in daily newspaper(s) was issued requesting the pre-31.03.2010 retired MPHS (Male) to “apply for revision of pension with legible copy of pension payment order and copy of the pass book of bank account, if any, mentioning the last date from where they retired to the Directorate of Public Health, Odisha by 28.02.2015”. 2.4. As the petitioner was getting Rs.5,712/- as basic pension which was less than Rs.6,750/-, he applied for revision of pension indicating receipt of TI of Rs.3,313/- in addition to basic pension of Rs.5,712/-, i.e., Rs.9,025/- in toto. Though similarly situated persons, who being pre-31.03.2010 retirees are accorded sanction to receive revised pension, the claim of the petitioner was not considered. The petitioner invoked Section 19 of the Administrative Tribunals Act, 1985 by way of filing Original Application being O.A. No.445 of 2008, which after abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E)], dated 2nd August, 2019), got transferred to this Court, W.P.(C) No.34311 of 2022 Page 12 of 59 and renumbered as WPC (OA) No. 445 of 2008. This Court disposed of said case with the following observation:
Legal Reasoning
“4. Mr. U.C. Mohapatra, for learned Counsel the Petitioner contended that in view of the notice issued by the authority, namely Director Public Health, Orissa, which clearly indicates that MPHS (M) retired prior to 31.03.2010 are entitled to get 50% of the minimum of the pay band plus G.P., i.e. Rs.9,300/- + G.P. Rs.4200/-, i.e. 6750/- per month + T.I. for full qualifying service w.e.f. from 01.04.2010. It is contended that the petitioner was getting less pension than what has been directed to be fixed in the notice itself. Therefore, he seeks for revision of pension and as such he has retired prior to 31.03.2010. Thereby, he is entitled to get such benefit. Reliance has also been placed to the letter dated 08.05.2014 issued by the Deputy Secretary to Government addressed to the Director, Public Health Services, wherein it has been stated that pension of all the MPHS (M), who retired prior to 31.03.2010 may be enhanced 50% of the minimum pay band plus grade pay, i.e. Rs.9300/- + Grade Pay Rs. 4200/-, i.e. Rs. 6750/- per month plus T.I. for full qualifying service w.e.f. 01.04.2010. Therefore, relying upon the letter dated 08.05.2014 and also the notice issued under Annexure-3, since the petitioner retired from service with effect from 30.06.1994, he claims that his pension should be revised and he should be granted the benefits as has been notified. Due to non-extension of such benefits, he has approached the tribunal by filing OA. No. 445 of 2018 claiming such benefits as has been extended to similarly situated persons. W.P.(C) No.34311 of 2022 Page 13 of 59 the period the petitioner from 20.12.1997 5. Pursuant to the notice issued, the Opposite Party No.4 filed his counter affidavit, where reliance has been placed to the letter dated 20.03.2017 issued by the Under Secretary to Government, Health and Family Welfare Department to the Director, Health Services Orissa, which indicates that the employees retired during to 30.03.2010 have been provided with pension on re- fixation and prior to 20.12.1997, the cadre was neither restructured nor MHPS (M) or MPHS (F) uniformity existed. Hence there is no justification to extend such benefit who retired prior to that date. Fixation of such cut-off date dated 20.12.1997 to is aggrieved and 30.03.2010, contended that in view of the letter already issued under Annexure-2 and notification issued under Annexure-3, where a right has been accrued in favour of the petitioner to get revised pension, that right cannot be and could not be taken away by the letter subsequently issued on 20.03.2017 denying the benefit of revised pension as he has retired prior to 30.03.2010. Reliance also been placed to the judgment of the apex Court in the case of State of Rajasthan and others Vrs. Mahendranath Sharma, Civil Appeal No. 1123 of 2015 arising out of SLP (C) No. 321 of 2015 disposed of 01.07.2015 [(2015) 8 SCR 32], where the apex Court held that all pre- 01.09.2006 pensioner shall not be lower than 50% of sum of the minimum pay of the post in the running introduced w.e.f. pay band plus grade pay 01.09.2006 corresponding to the pre-revised pay scale of the post from which pensioner had retired. Accordingly it is contended that, the petitioner having received the pension less than 50% and putting a cut-off date in the letter dated 20.03.2017 W.P.(C) No.34311 of 2022 Page 14 of 59 denying such benefit is arbitrary, unreasonable and contrary to the provisions of law and, it is also contended that the petitioner may be permitted to assail the letter dated 20.03.2017, by which the right which has been accrued in favour of the petitioner pursuant to the letter under Annexure-2 dated 08.05.2014 and subsequent notification issued under Annexure-3 have been taken away. 6.
Decision
In that view of the matter the Writ Petition stands disposed of granting liberty to the petitioner to assail the order dated 20.03.2017, if he is so advised.” 2.5. Questioning the propriety and legality in fixing the cut- off date by way of issue of communication vide Letter No.7878—F.W. (IW)-243/2016/H., dated 20.03.2017 (Annexure-15) restricting the employees who retired during the period from 20.12.1997 to 30.03.2010 to avail benefit of revised pension, the petitioner, who got retired on 30.06.1994, filed this writ petition. RESPONSE OF THE OPPOSITE PARTIES: 3. The opposite party No.3-Chief District Medical and Public Health Officer, Nayagarh filed counter affidavit asserting that the post from which the petitioner got retired on 30.06.1994 was Sanitary Inspector, but not MPHS (M) which is apparent from the copy of Pension Payment Order enclosed as Annexure-2 to the writ petition. Justifying issue of Clarification dated 20.03.2017 (Annexure-17) it has been asserted that Government servants who retired between 20.12.1997 to W.P.(C) No.34311 of 2022 Page 15 of 59 30.03.2010 as MPHS (Male) to be at par with MPHS (Female), the benefit of revised pension “from Rs.4000/- - Rs.6000/- to Rs.4750/- - Rs.7,500/- with effect from 20.12.1997 (date of notification) under Odisha Revised Scales of Pay Rules, 1998 and from Rs.5200/- - Rs.20200/- + Grade Pay Rs.2400/- to Rs.9300/- - Rs.34800/- + Grade Pay Rs.4200/- with effect from 01.01.2006 under the Odisha Revised Scales of Pay Rules, 2008 from the date of their engagement in the post of MPHS (Male) along with consequential benefits as admissible” vide Order dated 03.12.2018 of Health & Family Welfare Department (Annexure-16) has been extended. However, such benefit is refused to the pensioner who retired prior to 20.12.1997, as there was no cadre restructure nor did there exist uniformity between MPHS (Male) and MPHS (Female). 3.1. It is further affirmed by the opposite party No.3 that as no post of MPHS (Male) existed prior to 20.12.1997, as per the Odisha Revised Scale of Pay Rules, 2008, the pension of the petitioner has been fixed at Rs.5,712/- plus TI per month as per Finance Department Office Memorandum dated 19.01.2009 and he has been allowed such financial benefits with effect from 01.01.2006. With regard to extension of pension to Rs.6750/- + TI per month, it is contended that such benefit is applicable to the employees who got retired from Government service during 20.12.1997 to W.P.(C) No.34311 of 2022 Page 16 of 59 30.03.2010 which has been clarified by the Government of Odisha Health and Family Welfare Department Letter No. 7878— FW (IW)-243/2016/H., dated 20.03.2017 (Annexure-15). So, as the petitioner got retired from Government Service on 30.06.1994, extending the benefit as sought for in the writ petition is not permissible. 3.2. Expressing that retired employees as MPHS (Male) during 20.12.1997 to 30.03.2010 to be entitled to re- fixation, the opposite parties denied the benefit of revision of pay scale for the purpose of pension in respect of employees who retired prior to 20.12.1997 on the ground that “the cadre was neither restructured nor MPHS (Male) uniformly existed”. It is stated that it being a policy decision, the opposite party No.3 has expressed that, “this deponent has no such capacity to revise the pay of the petitioner beyond the aforesaid Government Order.” HEARING OF THE WRIT PETITION: 4. Vide Order dated 13.09.2022, while disposing of WPC (OA) No.445 of 2018 filed by the petitioner, this Court granted liberty to challenge the Clarification issued by the Government of Odisha in Health and Family Welfare Department in Letter No.7878—FW (IW)-243/2016/H., dated 20.03.2017. Accordingly, the petitioner has prayed for grant of following relief(s): W.P.(C) No.34311 of 2022 Page 17 of 59 “It is, therefore, humbly prayed that the Hon’ble Court may graciously be pleased to admit the writ petition, issue Rule NISI in the nature of appropriate writ or any other writ(s) as deem fit and proper calling upon the opposite parties to show cause, as to why the prayer made hereunder be not allowed, and if no/insufficient cause, the said rule be made absolute by issuing writ(s) in the nature of; The impugned letter at Annexure-15 be quashed, And the opposite parties be directed to allow the petitioner to get the benefits of revised pension @ Rs.6,750/- with T.I. with effect from 01.04.2010 in accordance with the Notice at Annexure-5 with all other subsequent benefits and arrears incurred thereon with interest over the delayed pension amount keeping in view the Finance Department Resolution at Annexure-3 in the interest of justice, And further be pleased to pass such other writ (s)/order (s) as may deem just and proper, And for this act of kindness, the petitioner, as in duty bound shall ever pray.” 5. The opposite party No.3-District Chief Medical and Public Health Officer filed counter affidavit. 5.1. Sri Pravas Chandra Mahapatra, learned Advocate for the petitioner has submitted when the matter is taken up on 01.07.2024 that the opposite party Nos.1, 2 and 4 having not filed response, it would be prudent that in view of ratio of decision rendered by the Hon’ble Supreme Court in the case of State of Rajasthan and W.P.(C) No.34311 of 2022 Page 18 of 59 others Vrs. Mahendranath Sharma, (2015) 9 SCC 540 = (2015) 8 SCR 32, the claim of the petitioner for grant of revised pension deserves to be allowed. 5.2. On being conceded by the counsel for both the sides, arguments are advanced by counsel for both the sides and the matter was finally heard on 01.07.2024 and kept reserved for preparation of Judgment and delivery thereof. ARGUMENTS ADVANCED BY THE COUNSEL FOR THE PARTIES: 6. Mr. Pravash Chandra Mahapatra, learned Advocate submitted that the benefit of revised pension has been extended to the retirees like the petitioner, having got retired on 30.06.1994 while working as Sanitary Inspector, which has been claimed by te petitioner to be re-designated as Multi-Purpose Health Supervisor on re- organisation of cadre. The benefit of revision of pension has been extended to the MPHS retired prior to 20.12.1997, but the same has been restricted to the pensioners, who were retired from Government service prior 20.12.1997 by virtue of Clarification of the Health and Family Welfare Department vide Letter dated 20.03.2017 (Annexure-15). 6.1. Questioning the rationality in restricting to avail the benefit of revised pension in respect of employees who have retired before 20.12.1997, he would submit that by W.P.(C) No.34311 of 2022 Page 19 of 59 way of Clarification the Helath and Family Welfare Department cannot take away the benevolence conferred on the pensioner like petitioner by the Finance Department vide Office Memorandum dated 19.01.2009 read with Helath and Family Welfare Department Clarification dated 20.06.2014. 6.2. Attention of this Court is brought to the following Resolutions of the Finance Department: “Finance Department ***** No.28999/PCC(A)-2/11(Pt.-1)/F., dated 27.06.2011 RESOLUTION Sub.: Revision of pay scale of Multi Purpose Health Supervisor (Male) at par with Multi Purpose Health Supervisor (Female). in issued (Male) and With a view to implementing the Multi Purpose Workers Scheme in the State and to bring uniformity the cadres of Multi Purpose Health in both line with (Female) Supervisor Government of India, the Health and Family Welfare Department, their Resolution No.50409, dated 20.12.1997. In the said Resolution, the basic qualification, job responsibility and training of Multi Purpose Health Supervisor (Male) and Multi Purpose Health Supervisor (Female) were equated. Since there was separate scales of pay under different Pay rules in case of Multi Purpose Health Supervisor (Male) and Multi Purpose Health Supervisor (Female), the same persisted till the recent revision of pay under the O.R.S.P. Rules, 2008. Being aggrieved, Page 20 of 59 W.P.(C) No.34311 of 2022 one Sri Ramesh Chandra Nayak & Others preferred O.A. Case No.1484 (C)/2009 with prayer for parity in pay scales of Multi Purpose Health Supervisor (Male) with that of Multi Purpose Health Supervisor (Female), while the issue was pending before the Anomaly Committee. The Learned Tribunal in their Order dated 31.03.2010 directed that parity in pay scales be allowed to the applicants with the scale applicable to their lady counterparts. This was placed before the Anomaly Committee. On the advice of the Law Department, Government in Finance Department preferred appeal in Hon’ble High Court against the orders of the Learned Tribunal in W.P.(C) the Hon’ble Court No.14827/2010. However, dismissed the appeal on merit. 2. After dismissal of the appeal by the Hon’ble High Court, the issue was considered by the Anomaly Committee. The Committee had also sought for the advice of the Law Department with regard to implementation of the order of the Hon’ble High Court. On the basis of the advice received from the Law Department, the Anomaly Committee, in its meeting held on June 20, 2011 recommended to the State Government to implement the order of the Hon’ble High Court. 3. The State Government, after careful consideration of the recommendation of the Anomaly Committee, have been pleased to order revision of pay scale of from Multi Purpose Health Supervisor Rs.5200-20200 + G.P.2400/- to Rs.9300-34800 + G.P.4200/- at par with the pay scale of Multi Purpose Health Supervisor (Female). This revised pay scale shall come into force w.e.f. 31.03.2010 (Male) W.P.(C) No.34311 of 2022 Page 21 of 59 notionally. However, actual financial benefit shall be allowed w.e.f. 01.06.2011 respectively. Order— Ordered that the Resolution be published in an Extraordinary issue of the Odisha Gazette. By order of the Governor Sd/- J. K. Mohapatra Principal Secretary to Government *** Finance Department *** No.37635-PCC(A)-11/12/F., Dt.27.08.2011 RESOLUTION Sub: Revision of pay scale of Multi Purpose Health Supervisor (Male) at par with Multi Purpose Health Supervisor (Female). The Government, on re-consideration, have been pleased to revise the pay scale of Multi Purpose Health Supervisor (Male) from Rs. 5200-20,200/- + Grade Pay Rs.2400/- to Rs.9300-34,800/- + Grade Pay Rs.4200/- with effect from 31.03.2010 so as to keep it at par with the pay scale of Multi Purpose Health Supervisor (Female) in partial modification of Finance Department earlier Resolution No. 28999 dated 27.06.2011. Order— W.P.(C) No.34311 of 2022 Page 22 of 59 Ordered that the Resolution be published in an extraordinary issue of the Odisha Gazette. By Order of the Governor Sd/- J. K. Mohapatra Principal Secretary to Government” 6.3. Referring to above Resolutions, it is submitted that the MPHS (M) have been allowed revision of scale of pay at par with MPHS (F). In view of aforesaid position, the State Government by issuing Clarification dated 20.03.2017 vide Annexure-15 cannot discriminate the present petitioner, who got retired from Government service as Sanitary Inspector. Mr. Pravas Chandra Mahapatra, learned counsel for the petitioner stemming on the definition of the terms “EXISTING PENSIONER” and “EXISTING PENSION” in clauses (a) and (b) respectively of Paragraph 3 of the Office Memorandum dated 19.01.2009 submitted that the Government having not brought out any invidious distinction between the retirees of pre-20.12.1997 vis-(cid:224)-vis post-20.12.1997, by way of Clarification dated 20.03.2017 cannot curtail the effect of the definition of the aforesaid terms as given in Paragraph 3 of the Finance Department Office Memorandum dated 19.01.2009. It is submitted that the Government by way of Clarification dated 20.03.2017 (Annexure-15) read into definition clause contained in aforesaid Office Memorandum, which is impermissible. W.P.(C) No.34311 of 2022 Page 23 of 59 6.4. Mr. Pravas Chandra Mahapatra, learned counsel for the petitioner further argued that the benevolence shown by the Government by issue of Office Memorandum in the year 2009 extending the benefit of revised pension could not have been given restrictive meaning by way of Clarification issued at belated stage in the year 2017. In this regard, the learned counsel for the petitioner has placed reliance on Mahendranath Sharma (supra) to contend that pre-20.12.1997 retired “Sanitary Inspector”, treating it to be a post of MPHS (M), in pursuance of public notice vide Annexure-5 read with Finance Department Office Memorandum dated 19.01.2009 is required to be given the benefit of revised pension by holding that the revised full pension of all pre-2006 State Government pensioners relatable to the maximum period of qualifying service shall in no case be less than 50% of the pay band plus the grade pay of the revised scale of pay with effect from 01.01.2006 for the post of last held by the pensioner on the date of retirement. 7. Raising strong objection to the contents of the writ petition, and vehemently opposing the arguments advanced by Sri Pravas Chandra Mahapatra, learned Advocate, Sri Sailaza Nandan Das, learned Additional Standing Counsel strenuously urged that the Government has issued Clarification 20.03.2017 by instructing that revised pension cannot be granted to the W.P.(C) No.34311 of 2022 Page 24 of 59 pensioners retired prior to 20.12.1999 as the cadre was neither restructured nor was there uniformity in the scale of pay of MPHS (M) and MPHS (F). It is submitted that the benefit of revised pension has been extended to the employees who retired during 20.12.1997 to 30.03.2010 by equalizing qualification, training and job description/responsibility of MPHS (M) and MPHS (F). Therefore, the learned Additional Standing Counsel submitted that the cut-off date has rational bearing on the facts of the present case. The writ petition is, therefore, liable to be dismissed. ANALYSIS AND DISCUSSION: 8. Main thrust of the argument of learned Additional Standing Counsel for the opposite parties turns on the issue that as the Pension Payment Order (Annexure-2) reveals that the petitioner got retired while working as “Sanitary Inspector”, he cannot be allowed to seek parity of revised scale of pay that is applicable to MPHS (M). Sri Pravas Chandra Mahapatra, learned counsel for the petitioner drawing attention to Resolution dated 27.06.2011 (Annexure-7) contended that since the Finance Department has accepted decisions of the Administrative Tribunal as confirmed by this Court that MPHS (M) is to be extended the same benefit as is extended to MPHS (F) as the basic qualification, training and job responsibility are equated, in the same analogy W.P.(C) No.34311 of 2022 Page 25 of 59 the benefit of revised scale of pay is required to be allowed to the pensioners who retired as “Sanitary Inspector” inasmuch as the said post was re-designated as “MPHS”. 8.1. Serious objection has been raised by the learned Additional Standing Counsel to such contention of the learned counsel for the petitioner. As there was no cadre restructuring prior to 20.12.1997, no infirmity can be imputed in the policy decision of the State Government with respect to restricting revised pensionary benefit to employees retired prior to the said date. Furthermore, the nature of duties discharged by the Sanitary Inspector and the MPHS are different and distinct. 8.2. It is explicit from perusal of Annexure-2, i.e., Pension Payment Order that the petitioner-pensioner has retired from Government service on 30.06.1994 while working in the post of “Sanitary Inspector”. The learned counsel for the petitioner except saying that said post has been re-designated as “MPHS”, has not placed any material to demonstrate that prior to 20.12.1997, the MPHS were being treated as “Sanitary Inspector” and the post from which the petitioner got retired was borne in cadre at the relevant point of time. It is also not forthcoming from the pleadings of the writ petition to show that the nature of qualification, training and job requirement coupled with W.P.(C) No.34311 of 2022 Page 26 of 59 responsibility attached thereto are similar in nature in respect of both the posts. 8.3. Be that be, in order to have clear idea about the job requirement and responsibilities entrusted to “Sanitary Inspector” vis-(cid:224)-vis “Multi Purpose Halth Supervisor”, it is felt expedient to have regard to State of Punjab Vrs. Shil Kumar Mariya, 2011 SCC OnLine P&H 3416 = ILR (2012) 1 P&H 480, wherein following questions for adjudication arose: “(1) Whether duties of the post of Multipurpose Supervisor working in the department of Health & Family Welfare are identical to that of the Sanitary Inspector working in Local Government Department? (2) Whether parity in the pay scale of a similar post in two different departments of the Government is required to be maintained all the times despite the restructuring and reorganization of one of the departments?” 8.4. In the said case, it has been observed as follows: “12. It is well settled principle of law that equality before law could be extended only to those who are equal to one and others. Equality amongst unequal would be antithetical to equality itself and would violate Articles 14 and 16 (1) of the Constitution. Therefore, it would be necessary to first examine whether the duties of the post held by the writ petitioner-respondent are identical to that of those which are sought to be made the basis for the purposes of grant of higher pay scale. The duties of W.P.(C) No.34311 of 2022 Page 27 of 59 both the posts are juxtaposed to present bird’s eye view which are as under: Sr. No. DUTIES Health Department (Multipurpose Supervisors-writ petitioner-respondent) (1) To supervise the Multipurpose Health Worker (Male) in the block. (2) To provide assistance to the Doctors, for checking the students of the Schools falling under his jurisdiction. of Blindness, (3) To participate in the other national like Eradication of Malaria, Programme Control Leprosy and Tuberculosis etc. and to educate the people for controlling them, afterwards. (4) Providing assistance in controlling the communicable disease. (5) Educating the people and maintain Environmental sanitation for good health. to carry out and Local Self Government (Sanitary Inspectors) (1) Primarily Sanitary Inspector is responsible to supervise the sanitation work of the city for example to clean streets and roads of the city through sweepers is the responsibility of the Sanitary Inspectors (2) The open nullas and the drains of the dirty water in the city as well as to remove the silt from drains nullas is also being done, under the supervision of the Sanitary Inspector. (3) To supervise collections of garbage of the residence/shops/Hotels from the city as well as and to carry the same towards dumping grounds. Solid waste management is done. natural this, (4) Besides calamities like the Cyclone, Floods as well as arising of any emergency in the city Sanitary Inspector supervise all these tasks. (5) In case of any disease in the city like cholera, dengue, diarhhoea and Malaria, the Sanitary Inspector pays special special attention. (6) During this period to prevent the Malaria and Dengue in the city, Sanitary Inspector has to supervise to sprinkle/spray Mosquito (repellant). (7) Disposal of the unclaimed dead bodies of the Human being and Animals. the (13) A perusal of the aforesaid table would show that the duties of a Sanitary Inspector are entirely different when compared to the duties of a Multipurpose Supervisor. The duties as listed in the aforesaid table have not been seriously disputed by the counsel for the writ petitioner-respondent. It has however been suggested that earlier to the merger of the post of Sanitary Inspector working in the health department with the common cadre of Multipurpose Supervisor, their duties were similar. However, fact remains that the restructuring of the cadre has taken place as different stages in 1978 and 1987 and as a W.P.(C) No.34311 of 2022 Page 28 of 59 result the pay scale has also been readjusted accordingly. The crisis which confronts the Courts in these types of matters is that the doctrine of equality is invoked for its application to different classes of persons who might seem to perform same duties. Such a claim sometimes is erroneously made on the basis that at one stage the pay scale of two classes of persons were identical and therefore, the parity needs to be maintained for all times to come. Such a proposition as a concept of law cannot be accepted. There is ample support for the view that merely because the nature of work is the same, the principle of equal pay for equal work cannot be applied without considering the educational qualification, mode of appointment, expenses and other host of factors. In support of the proposition we draw support from the judgment and observation made by the Hon’ble the Supreme Court in the case of Govt. of West Bengal Vrs. Tarun K. Roy, (2004) 1 SCC 347. (14) In State of Haryana Vrs. Charanjit Singh, (2006) 9 large number of SCC 321, after survey of a decisions, a three-Judge Bench of Hon’ble the Supreme Court has laid down that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. It has also been laid down that the primary function to find out whether there is a complete and wholesale identity in the matter concerning the duties of two posts the proper forum would be expert body and it cannot be a lacks necessary writ Court because infrastructure and expertise. It appears that in recent decision the abstract doctrine of equal pay for equal work has been considerably watered down. Page 29 of 59 it W.P.(C) No.34311 of 2022 The aforesaid principle has hardly been ever applied in recent cases. For example, Hon’ble the Supreme Court in para 9 and 10 of this judgment State of Haryana Vrs. Haryana Civil Secretariat Personal Staff Asstt., (2002) 6 SCC 72 has held that the equation of posts and salary is a complex matter which should be left to an expert body. The principle of equal pay for equal work has been considered by their Lordships in considerable detail and it went on to observe that the job concerning equation of posts etc. is both difficult and time consuming task which even experts with the assistance of the expert staff have found it problematical to undertake. The function of fixation of pay and determination of parity is better left to the executive because granting parity in the matter of pay scale by the Court may result in financial consequences, other cascading effects and adverse consequences. Then the observations made by Hon’ble the Supreme Court in the case of Union of India Vrs. Pradip Kumar Dey, (2000) 8 SCC 580 can be profitably quoted which are as under: and order judgment ‘14. In this background as to the position of law touching the controversy raised in this appeal, we have no hesitation in holding that the impugned are unsustainable. The learned counsel for the appellants placed before us a chart showing facilities, other difference providing leave allowances, accommodation, etc. the purpose of comparison between the pay scales and other facilities of the respondent and similar other employees working the Directorate of in Coordination Police Wireless and other central Page 30 of 59 in pay scales, period, for W.P.(C) No.34311 of 2022 of hierarchy government agencies. The learned counsel for the respondent reiterated that the nature of duties and responsibilities of the respondent are not only similar when compared to other employees similarly placed, but on the other hand they are more hazardous. It is an indisputable fact that the pay scales now claimed by the respondent are those prescribed for the post of Assistant Sub-Inspector. As already noticed above, it is once again a promotional post for a Naik. Acceding to the claim made by the respondent would not merely result in change in the pay scales but may also lead to alteration of the pattern requiring reorientation and restructuring of the other posts above and below the post of respondent. Added to this, such consequences are likely to be felt in the various other central police establishments as well. All these which are likely to have a chain reaction, may require further consideration afresh by an expert body like the Pay Commission or the Government itself at an appropriate time in an appropriate manner. Courts should normally leave such matters for the wisdom of administration except the proven cases of hostile discrimination. But in the case on hand, having regard to the facts and circumstances of the case and the position of law stated above, the Division Bench of the High Court was not right in granting the relief itself, straight away to the respondent; that too, without examining the implications and impact of giving such directions on other cadres. However, we make W.P.(C) No.34311 of 2022 Page 31 of 59 it clear that the rejection of the claim of the respondent need not be taken as an issue closed once and for all. It is always open to the Government to consider the issue either by making reference to the Pay Commission or itself once again as to the grant of pay scales to the respondent. It is open to the respondent to make further and detailed representation.’ (15) Placing reliance on the theory of ‘separation of power’ Hon’ble the Supreme Court has gone to the extent of laying down in the case of S.C. Chandra Vrs. State of Jharkhand, (2007) 8 SCC 279 that it is the sole function of the executive to determine the pay scale of various posts and the judicial review is very limited. In para 35 of the judgment, the following relevant observations have been made: ‘35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too for the matter should be sent examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).’ (16) The cascading effect as spoken about by Hon’ble the Supreme Court may result into another manifestation of altering the pattern W.P.(C) No.34311 of 2022 Page 32 of 59 of hierarchy requiring re-orientation and restructuring of other posts high or low in the ladder belonging to a department. The observation appears to be very close to the one made by Hon’ble the Supreme Court in the case of State of U.P. Vrs. J.P. Chaurasia, (1989) 1 SCC 121. Therefore on the basis of overwhelming legal position as discussed in the preceding paras it becomes evident that judgment rendered by the learned Single Judge does not stand judicial scrutiny and is thus liable to be set aside. (17) It would, however, be necessary to notice one argument raised by the writ petitioner-respondent. They have submitted that in view of categoric findings recorded by this Court in earlier writ petitions filed by the writ petitioner-respondent, their functions and duties have been considered to be at par and no scope is left either for the learned Single Judge or for this Bench to set aside those findings and record a conclusion other than the one recorded by this Court in earlier judgments. The obvious reference is to the Order dated 12.08.1992 (P-3) and 26.05.1995 (P-5). In the aforesaid two orders, the writ petitions were disposed of by this court. Apparently emphasis was laid on the following findings recorded in the order dated 12.08.1992 which was passed while disposing of C.W.P No. 1920 of 1987 (P-3): ‘Indisputably, the employees working in the Health department as well as these working in the Department of Local Self Government were placed in an identical scale of pay viz Rs. 510-940 with effect from 01.01.1978. It is also not disputed that their qualifications job requirements and nature of duties W.P.(C) No.34311 of 2022 Page 33 of 59 are identical. In such a situation, the action of the Government in treating the two sets of employees performing identical duties, in a different manner in the matter of pay scales, cannot be justified. It apparently appears to be arbitrary. Furthermore, one can only lament the absolute indifference of the authorities in considering the matter. Admittedly, the recommendations from the Department of Health for the grant of selection Grade to the petitioners has been made vide letter dated July 16, 1982. In spite of the fact that more than ten years have already elapsed, the Government has not been able to decide the matter. As a result, a number of persons are approaching Courts of law.’ to issued this Court, directions were (18) A perusal of the aforesaid observation made by this court would show that at first blush this Court has recorded a prima-facie view that the qualification, job requirements and nature of duties were identical. Despite the aforesaid prima-facie opinion expressed by the appellants to consider their case and pass a speaking order. The appellants never accepted the parity in nature of duties, equivalence of the qualifications and the job requirements etc. Even otherwise dispute concerning identity of pay scale, nature of duties and a host of other factors have to be gone into to determine whether the pay scale of one post could be extended to another post. It is not within the domain of the Court to undertake any such exercise as has been discussed in preceding paras. Accordingly, we express our inability to accept the aforesaid argument and are of the view that no concluding findings of binding nature were ever recorded either in the order dated 12.08.1992 Page 34 of 59 W.P.(C) No.34311 of 2022 (P-3). There is no such thing in the Order dated 26.05.1995 (P-5) that the duties of two posts were identical. In State of West Bengal Vrs. West Bengal Minimum Wages Inspectors Association, (2010) 5 SCC 225, the Hon’ble Supreme Court in para 18 and 19 has held as under : ‘18. The principles relating to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts. responsibilities experience, method 19. The principle “equal pay for equal work” is not a fundamental right but a constitutional goal. It is dependent on factors such as educational various qualifications, nature of the jobs, duties to be performed, to be of discharged, recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are the satisfied Government is patently irrational, unjust and prejudicial to any particular section of employees’. the decision of that W.P.(C) No.34311 of 2022 Page 35 of 59 (19) As a sequel to the above discussion, the answer to question A is in the negative and it is held that firstly duties of two poses are not the same and secondly the Courts are not competent to undertake any such exercise so as to conclude that once the nature of work and duties are identical, therefore, the pay scale should also be identical. Hence, the 1st question has to be answered in favour of the appellant-State and against the writ petitioner- respondents.” 8.5. In State of Punjab Vrs. Surjit Singh, (2009) 9 SCC 514 upon review of large number of judicial precedents, the Hon’ble Supreme Court observed: