Kedarnath Sarangi vs Central Electricity Supply Utility of Orissa "TPCODL" represented through its Chief Executive Officer Vs

V. Narasingh, J

Learned counsel for the Petitioner submits that during the pendency of the writ petition, the Management of the Opposite Party has changed and accordingly, he files a consolidated cause title impleading TPCODL as Opposite Party. The same is taken on record. Registry is requested to reflect the name of the said Opposite Party as per cause title filed today.

Heard Mr. A.K Mohanty, learned counsel for the Petitioner and Mr. R. Acharya, learned counsel for the State.

The Petitioner who was working as an Assistant Manager (Finance) under the Electrical Circle No.1, CESU has approached this Court, inter alia, assailing the order dated 15.02.2020 at Annexure-7 by which his prayer for stepping up of pay at par with his junior Sri Prasanta Kumar Sahoo with effect from 07.11.2008 and for payment of differential amount was negatived.

For convenience of ready reference, the prayer in the writ petition is culled out hereunder:

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It is therefore prayed that Your Lordships would be graciously pleased to;

i) admit this writ petition,

ii) Call for the records,

iii) Issue RULE NISI calling upon the Opp. Parties to show cause as to why the impugned order dated 15.02.2020 under Annexure-7 shall not be quashed and stepping up the pay of the petitioner with that of his junior Prasant Kumar Sahoo shall not be allowed w.e.f. 07.11.2008 and differential amounts shall not be released in his favour within a time to be stipulated by this Hon’ble Court.

If the Opp.Parties do not show cause or show insufficient cause, the writ may be made absolute and the Opp. Parties may be directed to allow the stepping up pay between the petitioner and Sri Prasant Kumar Sahoo (Ex-Junior Manager, Finance Department) (Retd.,) and consequential differential amounts may be released in favour of the petitioner w.e.f, 07.11.2008 within a time to be stipulated by this Hon’ble Court, And further be pleased to pass any other appropriate order/orders, Writ/ writs, direction/directions as this Hon’ble Court may deem just and proper in the interest of justice,

And for this act of kindness the Petitioner as in duty bound shall ever pray.

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Learned counsel for the Petitioner Mr. Mohanty, submits that admittedly the Petitioner joined as Junior Accountant on 26.12.1988 and the said Sri Prasanta Kumar Sahoo on 12.10.1989 and the Petitioner got promotion as an Accountant on 28.06.1996 whereas the said Sri Prasanta Kumar Sahoo, who is junior to the Petitioner in the same cadre was absorbed as Junior Accountant on account of formation of CESU.

It is submitted that the Petitioner successfully cleared in the Departmental Test Examination. Thereafter he was promoted to the rank of Junior Manager on 19.01.2005. And, with effect from 01.01.2006, the Petitioner’s scale was fixed under the O.R.S.P Rules 1998, but his salary was admittedly less than his juniors.

When the matter stood thus, said Sri Prasanta Kumar Sahoo appeared in D.T. Examination and his scale was fixed under the O.R.S.P Rules, 1998 and he was promoted in the year 2008 as Accountant, 12 years after the Petitioner.

Since he was granted four advance increments, his Basic Pay was fixed at Rs.16,890/-, G.P. Rs.4200/- in the scale of Rs.9300-34800/- whereas petitioner was drawing, at the relevant time, salary at Rs.15,360/- which is ex facie less than Sri Prasanta Kumar Sahoo.

Claiming parity & stepping up of pay, the Petitioner made a representation on 15.12.2015 to the Chief Executive Officer, CESU, Bhubaneswar. And, referring to the comparative pay particulars it is submitted that stepping up of pay should be governed by the circular by the Finance Deptt. Circular No. 17401/F dated.22.04.1995, which is at Annexure-D/2 of the Counter Affidavit and reads as under:

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(12) Stepping up of pay of senior to that of his junior Advance increment(s) for acquiring higher qualification/Bar practice : At present Engineers and Doctors are entitled to two advance increments for acquiring higher technical qualification, viz. M. Tech./M.S./M.D. Degree in Class II rank. Besides, Lecturers are also eligible for 3 advance increments for acquiring Ph.D. Degree and one advance increment for M. Phil at the initial stage of pay at the time of first appointment. Similarly, officers of O.S.J.S. directly recruited from Bar are also allowed one advance increment for each 3 years of Bar practice subject to the maximum of 4 advance Increments. There are also other cases where grant of advance increments on account of higher qualification is in vogue.

It has come to the notice of Government that some of the Senior Officers/employees who have been granted advance increments for higher qualifications/practice in Bar in the pre-revised scale of 1985/1986/1989 are getting less pay than their Juniors when granted advance increments for the same purpose in the revised scale of 1985/1986/1989.

In Finance Department resolution No. 19163/F., dated the 3rd May 1985, Office Memorandum No. 59977/F., dated the 19th December 1986 and No. 31026, dated the 8th August 1989 principles have been prescribed for stepping up pay of the Senior Officers/employees with that of their Juniors, in case of anomaly in pay arising out of the promotion of the Junior on a later date. The present anomaly in pay of Senior and Junior arising out of grant of advance increment(s) in revised and pre-revised scales of pay does not come within the purview of aforesaid Circulars.

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Taking into account the grievance of the Petitioner, a clarification was sought by the CESU, Bhubaneswar in its letter dated 28.01.2017 at Annexure-5 which is referred to both by the Petitioner as well as the Opposite Party Nos.1 and 2. The following paragraph of the said letter at annexure-5 having bearing on the point at issue is extracted hereunder:

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As it would be seen from the comparative statement of pay particulars of both the officers, Sri Sarangi who is all along senior since his first joining in service as Junior Accountant is drawing higher rate of Pay than Sri Sahoo since his joining as Junior Accountant up to the date of joining of Sri Sahoo as Accountant in the year 2008. Sri Sarangi is also holding higher post all along since his promotion to Accountant in the year 1996. Sri Sahoo is getting more Pay since his joining as a Accountant on promotion w.e.f 07.11.2008 F.N in comparison to Si Sarangi who is functioning as Junior Manager (Finance) at that time. Both of them are carrying the same: Pay Scale/Pay Band and Grade Pay on the said date. The immediate cause of this disparity in Pay is that,/ Sri Sahoo was allowed 4 (four) advance increments over & above the normal promotional benefit at a much higher rate of increments in the revised Pay Scale/Pay Band on his promotion to Accountant w.e.f 07.11.2008 F.N, whereas, Sri Sarangi was allowed 4 (four) advance increments for passing of DT exam and normal promotional benefit at a lower rate of increments in the pre-revised scale of pay on his promotion to

Accountant w.e.f 28.06.1996 F.N.

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The Government in the Department of Energy, Govt. of Odisha in its letter dated 03.11.2017 gave its response as under:

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In inviting a reference to your letter No. 2090 dated 28.09.2017,0n the subject cited above, I am directed to say that Stepping up of pay may be considered observing the conditions stipulated in the Finance Department O.M. No.19168/F, dated 03.05.1985(copy enclosed),Besides, if the senior and junior officer of Government belongs to the same cadre and drawing their pay in the different posts the pay of senior officer of Government may not-be eligible for stepping up of pay at par with the junior as-per the above Finance Department O.M, referred above. In the present case, the senior and Junior officer are holding post in same cadre but drawing pay in different posts.

Hence, they may be allowed stepping upof payof the senior officer with that of junior officer as per service conditions/ rules applicable for CESU employees.

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(Emphasized)

Learned counsel for the Petitioner Mr. Mohanty, submits that in view of such clarification, there was no justification for denial of stepping up pay to the Petitioner at par with the junior since there is no dispute regarding the factual aspects and it is his further submission that the condition precedent for getting such stepping up of pay as per the Finance Department circular dated 17401/F dtd. 22.04.1995 is squarely fulfilled by the Petitioner.

Per contra, learned counsel for the Opposite Parties 1 and 2, Mr. Acharya, referring to the recitals in the counter affidavit and the circular of the Finance Department, which is annexed to the counter affidavit dated 03.05.1985 at Annexure-C/2, submits that the Petitioner is not entitled to such parity of pay and in this context, learned counsel Mr. Acharya refers to the paragraph-13 of the counter affidavit.

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That it is humbly submitted that, In the present case, the petitioner had drawn pay as Junior Manager Finance) in the Pay Scale /Pay Band of Rs.9300-34800/- + GP 4200/-of executives whereas Sri Sahoo had drawn Pay as Accountant in the Pay Scale /Pay Band of Rs.9300-34800/- + GP 4200/- of Non-executives on the date of promotion as Accountant of Sri Sahoo i.e.07.11.2008, hence not satisfying the above condition. Therefore, Stepping up of Pay of the petitioner with that of his Junior Sri Prasanta Ku. Sahoo is not tenable under the law i.e. under Finance Deptt. Office Memorandum No.19168/ Fdtd. 03.05.1985, No. 17401/ Fdtd.22.04 1995 and CESU Office order no. CESU/HR/lR/10-112/20677 dtd.31.08.2018.

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In response, thereof learned counsel for the Petitioner adverts to the rejoinder affidavit to reiterate his submission.

Learned counsel appearing for the OPTCL (Opposite Party No.3) submits that the Petitioner has no grievance against the Opposite Party No.3 in fact opposite party no.3 ought not to have been arrayed as an Opposite Party.

On perusal of the counter affidavit of the OPTCL, on which reliance has also been placed by the learned counsel for the Petitioner to restate that the Petitioner is admittedly senior to said Sri Prasanta Kumar Sahoo, who was granted advance increments.

In such factual backdrop, this Court is called upon to decide as to whether the action of the Opposite Party in denying prayer of Petitioner for stepping up of pay is justified.

On a bare perusal of the impugned order at Annexure-7 it is seen that the same has been passed, inter alia, on the ground referring to the Finance Department Office Memorandum No.19168/F dtd. 03.05.1985.

As already noted, the Petitioner has placed on record the Financial Deptt. Circular No. 17401/F dated 22.04.1995, wherein Finance Department Memorandum dated 03.05.1985 has been specifically referred to. And the impugned order noted above has been passed referring to 1985 Finance Department Memorandum.

On a bare reading of the Finance Department Circular No. 17401/F dated 22.04.1995 at Annexure-D/2, it can be seen the condition precedent of applicability has been stated at Paragraph-4 of such Circular.

18A.  In paragraph-10 of the writ petition the Petitioner has specifically referred to such circular and the recitals in the said regard, are extracted hereunder;

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That it is respectfully submitted that the CESU has adopted the principle of granting advance increments on the basis of the decision of the Board of Directors of erstwhile OSEB in its 128th meeting held on 28. 06.1971. In the said decision, it was held that the Accountants on passing the Department Test Examinations were allowed 4 advance increments vide its Office Order dated 30.06.1971 and the practice was continued as such. So the grant of 4 advance increments was not being extended on the basis of OSRP Rules. So the grievance of the petitioner for giving higher rate of advance increment "to Sri Sahoo which created the anomaly not flowing from ORSP Rule as per the decision of the Board of Directors, but the Opp. Party No.2 while considered the grievance of the petitioner to maintain parity in the pay scale between the Petitioner and that of Sri Sahoo, he himself while sought for clarification from Government and in his letter, he was convinced in his letter for clarification dated 28.01.2017 that, there is anomaly and Sri Sahoo is getting higher rate of increments in the revised scale/pay band on promotion whereas the petitioner is getting the said advance increments at a lower rate of increments in -the pre-revised scale. But in his impugned order dated - 15.02.2020 he rejected the representation of the petitioner saying that, representation dated 17.12.2019 of the petitioner for stepping up pay with that of his junior Sri Sahoo is not tenable under law i.e., under ORSP Rules, 2008 and Finance Department Office Memorandum dated 03.05.1985. The impugned order of the Opp. party No.1 is complete non-application of mind, illegal, arbitrary, contrary to his own appreciation of facts contained in the letter of Clarification dated 28.01.2017 as well as the clarification tendered by the Additional Secretary to Government dated 03.11.2017 (under Annexure-5 and 5/A). First of all, the ORSP Rules has no application in the case of CESU because it has its own Board of Directors decision to extend the benefit to maintain the pay parity of its employees which can be seen from the OPTCL office order No.16127 dated 13.09.2011 and the same has also been followed by CESU in its subsequent order withdrawing such benefit on 10.01.2014, therefore the rejection of representation by the Opp.Party No.2 on the ground that stepping up of pay is not tenable under ORSP Rules, 2008 is not sustainable in the eye of law. Further, in continuation to the circular of Finance Department dated 03.05.1985, the Finance Department has introduced another circular bearing No.17401/F dated 22.04.1995, that the pay of Senior Officers who have been allowed advanced increments in pre-revised scale of pay and drawing less pay than his juniors on account of the latter availing the benefits of advance increment in the revised scale of pay shall be stepped up with that of juniors subject to the following conditions being satisfied. The conditions so stipulated are duly fulfilled by the petitioner hence he is entitled to get the benefit of stepping up of pay, but the Opp. party No.2 has ignored this aspect from his consideration. So far the representation of the petitioner is concerned, the Opp. party No.2 has mentioned that, your representation dated 17.12.2019 but in actuality he had made a representation on 15.12.2015 under Annexure-3 series immediately after the anomaly came to the notice of the petitioner. So the impugned order of the Opp. party No.2 is bad in law, arbitrary, non-application of mind and liable to be set aside.

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(Emphasized)

It is apt to note that the above recitals having a direct bearing on the point of issue has not been controverted in the counter affidavit filed by the TPCODL.

On a perspicuous analysis of the materials on record keeping in view the response of the Government of Odisha, Department of Energy in its letter dated 03.11.2017 adverted to hereinabove and in the light of Finance Deptt. Circular No. 17401/F dated.22.04.1995 at Annexure-D/2, this Court finds force in the submission of Mr. Mohanty, learned counsel for the Petitioner that the action of the Authorities in denying the stepping up of pay to the Petitioner at par with his junior in the cadre Sri Prasanta Kumar Sahoo is untenable.

Accordingly, the impugned order at Annexure-7 is quashed and it is directed that the Petitioner shall be entitled to the pay and other consequential financial benefits at par with Sri Prasanta Kumar Sahoo after adjusting amount already paid.

Since the Petitioner has already retired in the meanwhile, such exercise shall be completed within a period of four months from the date of receipt/ production of copy of this judgment.

Accordingly, the writ petition stands disposed of. No Costs.

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