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Judgment
S.N. Prasad, J—Heard learned counsel for the petitioners and learned counsel for the opposite parties.
The writ petition has been filed by the petitioners against the order dated 5.10.2009 by which the request regarding implementation of Orissa Revised Scales of Pay, 2008 (in short ORSP, 2008) and payment of differential arrear dues in favour of voluntary retired employees of Orissa State Housing Board (in short ''OSHB'') arising out of such revision in pay scale has been rejected.
The case of the petitioners is that they were appointed as Drivers on different dates in different capacities in the office of OSHB.
The State of Odisha has floated a scheme for separation under Voluntary Retirement Scheme (in short ''VRS'') which was implemented by the OSHB in its 243rd meeting held on 26.02.2008, the petitioners have made applications for separation under VRS which were accepted and in consequence thereof, the petitioners were relieved w.e.f. 30.06.2008 from service. ORSP Rule, 2008 has come into w.e.f. 24.12.2008 implemented w.e.f. 1.1.2006.
The petitioners have made applications for separation under VRS which were accepted and in consequence thereof, the petitioners were relieved w.e.f. 30.06.2008 from service. ORSP Rules, 2008 has come into w.e.f. 24.12.2008 implemented w.e.f. 1.1.2006.
The grievance of the petitioners is that they are entitled to be given benefit of revision in pay scale because it has been implemented w.e.f. 1.1.2006, the date when the petitioners were on roll of service.
Learned counsel appearing for the OSHB has vehemently oppose the prayer of the petitioners and in sub and substance has stated that since ORSP, 2008 was implemented by the Finance department vide notification No. , 5524/F dated 24.12.2008 while the petitioners were relieved on 30.06.2008 hence they are not entitled to get the benefit as per OSRP Rules, 2008 (hereinafter Rules, 2008) because the Rules, 2008 has not given its retrospective effect.
He refuted the argument of the learned senior counsel appearing for the petitioners that merely because the provision of Rules, 2008 has been implemented w.e.f. 1.1.2006, the petitioners cannot be held to be entitled to get benefit of revision in pay scale because the Rules, 2008 has been implemented only on 24.12.2008, the day when the petitioner was not on roll of the service of OSHB.
Learned senior counsel appearing for the petitioners has relied upon one unreported order passed by this Court in W.P.(C) No. 20608 of 2010 with other analogous cases of the order dated 27.07.2011.
Learned counsel appearing for the OSHB has relied upon the judgment rendered by Hon''ble Supreme Court in the case of A.K. Bindal and Another Vs. Union of India (UOI) and Others, AIR 2003 SC 2189 : (2003) 114 CompCas 590 : (2003) 98 FLR 1 : (2003) 4 JT 328 : (2003) 2 LLJ 1078 : (2003) 134 PLR 470 : (2003) 4 SCALE 313 : (2003) 5 SCC 163 : (2003) SCC(L&S) 620 : (2003) 45 SCL 89 : (2003) 3 SCR 928 .
Heard the parties and perused the documents on record.
The question which is to be decided in this writ petition is that as to whether;
"the petitioners will be said to be entitled for getting benefit of revisions in pay scale by virtue of implementation of Rules, 2008"
For determining this issue it is relevant to see some facts of the case.
The OSHB in its 243rd meeting held on 26.02.2008 has floated a scheme for voluntary retirement asking option from one or other employee in order to separate the employee from service since OSHB was suffering from financial crisis.
The said scheme provides benefit of ex-gratia payment, gratuity and earned leave in favour of the employee who will opt for separation under the VRS as would be evident from Notice dated 02.06.2008 (Annexure-3) wherein at Clause 5.0 under the heading of "Voluntary Retirement Benefits", following benefits are made to be paid to the employee seeking separation under the said scheme. For ready reference the same is being quoted herein below:--
"5.1. A regular/work charged employee who is allowed to retire voluntarily by the Competent Authority shall be entitled for the following benefits;
(a) Ex-gratia
Ex-gratia payment at the rate of 50 days salary (Basic Pay + D.A. + D.P.) last drawn for every completed year of service. For less than a year, benefit should be assessed proportionately.
(b) Gratuity.
Gratuity as provided under the payment of Gratuity act, 1972.
(c) Earned leave.
Cash equivalent of accumulated Earned Leave as admissible for regular employee and 240 days in case of work charged employees."
The petitioners being regular employees have given option for separation under VRS which were accepted and the petitioners were relieved w.e.f. 30.06.2008 as would be evident from Office Order dated 28.06.2008 in which the names of the petitioners appears at Sl. Nos. 1 to 5 (Annexure-1).
The ORSP Rules, 2008 has been implemented by the notification issued in this regard by the Finance department on 24.12.2008 adopting recommendation of 6th Pay Revision Committee and implemented retrospectively w.e.f. 1.1.2006. After its implementation, the petitioners have made a representation before the authority but the same was not entertained resulting into filing of this writ petition.
The claim of the petitioners were rejected on the ground that the Department of Public Enterprises, Government of Odisha has turned down the request made in this regard by the OSHB saying therein that benefits of revision in pay scale for the voluntary retired employees of the OSHB is not tenable to be given vide communication dated 5.10.2009 the petitioner being aggrieved with the said communication has filed this writ petition.
Admittedly, OSRP Rules, 2008 has been implemented on 24.12.2008, the day when the petitioner has been relieved under VRS after making the payment on the basis of the VRS benefits as provided under the Scheme as indicated above.
So far as claim of the petitioners that the petitioners are entitled to get benefit of revision in pay scale since it has been implemented w.e.f. 1.1.2006.
In this regard learned senior counsel appearing for the petitioners has relied upon one un-reported judgment passed in W.P.(C) No. 20608 of 2010 along with other analogous cases which was disposed of on 27.07.2011. From its perusal the same pertains to a case of employees who have given resignation or terminated as such Division Bench of this Court has been pleased to pass an order with respect to an employee who has either resigned or retired or terminated after 1.1.2006.
Thus the facts of the case of W.P.(C) No. 20608 of 2010 and other analogous cases is quite different to the facts of the case because this case pertains to the claim of the petitioner who has been separated from service under VRS.
On the other hand, learned counsel appearing for OSHB has relied upon the judgment rendered by the Hon''ble Supreme Court in the case of A.K. Bindal and Another Vs. Union of India (UOI) and Others, AIR 2003 SC 2189 : (2003) 114 CompCas 590 : (2003) 98 FLR 1 : (2003) 4 JT 328 : (2003) 2 LLJ 1078 : (2003) 134 PLR 470 : (2003) 4 SCALE 313 : (2003) 5 SCC 163 : (2003) SCC(L&S) 620 : (2003) 45 SCL 89 : (2003) 3 SCR 928 which deals with the employees who have get benefits of separation under VRS.
In the case of A.K. Bindal and another the Hon''ble Supreme Court has been pleased to hold that a class of employees who have been separated under VRS forms a separate class and they cannot claim parity in comparison with the employee who has resigned or retired after attaining normal superannuation because the employees who have been permitted to be separated under VRS has been given handsome amount as per the scheme which facilities has not been availed by the employees who have retired after attaining normal age of superannuation.
After taking into consideration, the relevant part of the said judgment more specifically at paragraph-34 wherein their lordships of Hon''ble Supreme Court has been pleased to observe that once an employee has opted for separation under golden handshake policy the purpose of floating the said policy is to separate the employee after making payment of handsome amount. When the amount is paid to the employee the relationship of the employee and employer is ceased or it indicates that the employee leaves all his right and there is no question of his again agitating for any kind of past right without any complaint on erstwhile employer including any claim with respect to handsome salary from an earlier period.
If the employee is still permitted to raise a grievance regarding handsome amount and revisions in pay scale from retrospective effect even after he has opted for VRS and has accepted, the amount paid to the employee the whole purpose of introducing the Scheme would be totally frustrated.
In this regard, reference of the judgment by Hon''ble Supreme Court in the case of Manojbhai N. Shah Vs. Union of India (UOI)(2015) 2 AD 181 : (2015) 1 ESC 177 : (2015) LabIC 1193 : (2015) 1 SCALE 64 : (2015) 4 SCC 482 : (2015) 1 SCJ 465 : (2015) 2 SCT 49 : (2015) 1 SLJ 357 : (2015) 1 UPLBEC 25 needs to be considered wherein their lordships held at paragraphs-31 to 34 are being quoted herein below:--
"31. In the instant case, it is crystal clear that the employees had already opted under the Schemes - under a specially made scheme, which was framed only with an intention to reduce future expenditure of the employers. If all these benefits are given to the persons who had already opted under the Scheme and had retired, the real purpose with which the Scheme had been framed would be frustrated.
We do not agree with the submission made on behalf of the employees that action of the employers in not giving pay rise to the employees in pursuance of the notification is discriminatory in nature. The employees who retired under the Scheme form a separate class of employees who were given many benefits, which are not given to the employees retiring in normal course. If they all form a separate class, by no stretch of imagination can it be said that all those who retied under the Scheme and those who retired in normal course, are similarly situated. Thus, in our opinion, there is no violation of Article 14 of the Constitution of India in the instant case.
Similarly, there is no violation of principle of equal pay for equal work. True, that those who retired under the Scheme did the same work which was being done by those who retired in normal course, but one cannot forget the fact those who retired under the Scheme got substantially higher retirement benefits.
Some submissions were made by the learned counsel for the employees regarding power of the employers in relation to issuance of the Notification dated 21-12-2005. We are of the view that an employer can fix salary for its employees and we do not agree with the submission that the Notification was not issued properly legally."
On the basis of settled proposition as referred herein above if the facts of the case will be seen admittedly the Rules, 2008 has been implemented on 24.12.2008, the petitioner has opted for VRS and relieved on 30.06.2008, all these have happened prior to implementation of Rules, 2008 i.e., on 24.12.2008.
Hence, the day when Rules, 2008 has been implemented, the petitioners have already been separated from service after taking all the benefits as such they cannot be said to be entitled for the revision in pay scale.
So far as the contention of the learned counsel for the petitioners is that since Rules, 2008 has been implemented w.e.f. 1.1.2006, he was on roll hence he is entitled to get benefit of revision in pay scale w.e.f. 1.1.2006.
This argument of the learned counsel for the petitioners cannot be accepted due to the reason that the Rules, 2008 has been implemented on 24.12.2008 w.e.f. 1.1.2006. So the implementation of Rules, 2008 will have to be taken into consideration not its effective date. Further consideration of entitlement of an employee can be considered only if he will be on roll on the day when it has been implemented then only its effects can be given otherwise not.
In view of the facts and circumstances and on the basis of the settled proposition of law that when Rules, 2008 has been implemented, the petitioners have already been separated from service w.e.f. 30.06.2008 as such relationship of the employer and employee ceased on or after 30.06.2008. Since Rules, 2008 has been given effect only w.e.f. 24.12.2008 hence the petitioners cannot be said to be entitled for payment of revision in pay scale in terms of ORSP Rules, 2008.
In view thereof, I find no merit in this writ petition.
Accordingly, the writ petition is dismissed being devoid of merits.