Dismissed

State of Odisha v. Nirmal Ch.Nayak

Orissa HC6 Jul 2017WP(C)/22982/2016

Case brief

AI extract

What is this about?

W.P. challenging the Orissa Administrative Tribunal's order directing payment of differential salary arrears to a former employee. The High Court dismissed the petition, holding the malfunction of the promotion committee was not the employee's fault and noting the miscellaneous application was filed under court liberty.

What did the court decide?

dismissed the writ petition allowing the Tribunal's order to stand unchallenged.

State of Odisha Vs Nirmal Ch.Nayak — Pension and Retirement Benefits | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK.

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W.P.(C) No.22982 of 2016

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In the matter of application under Articles 226 and 227 of the Constitution of India.

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State of Odisha and others …… Petitioners - VersusNirmal Chandra Nayak and another …… Opposite Parties

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For Petitioners : Mr. D.R. Mohapatra, Standing Counsel (School & Mass Education Department)

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For Opp. Parties : Mr. S.B. Jena (For opposite party no.1)

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PRESENT:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA &

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THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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Date of hearing and judgment : 06.07.2017

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S. N. Prasad, J. This writ petition under Articles 226 and 227 of the Constitution of

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India has been filed wherein the order passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in Miscellaneous Petition No.83(C) of 2010 dated 13.2.2014 arising out of O.A. No.604(C) of 1990 has been sought to be quashed, whereby and whereunder the Tribunal has directed the authorities to pay the differential arrear of the applicant for the period from 1.11.2005 to 23.7.2009 in accordance with the order passed in the original application.

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The fact leading to filing of the instant writ petition is that the applicant/opposite party no.1, who had joined his service as Class-IV on 27.11.1977. He has been recruited and appointed as junior clerk on 9.12.1983. Accordingly, he resumed his duty. He subsequently has been reverted to the Class-IV post on the ground that the appointment has been made without following due procedure, against which he has approached to the Tribunal vide O.A. No.604(C) of 1990, which has been disposed of in terms of the order dated 30.6.2005 passed by the Tribunal in O.A. No.887 of 1990. The authorities, in gross laches on their part, have not constituted the Departmental Promotion Committee for a long period. The meeting of Departmental Promotion Committee was convened only on 23.7.2009, i.e., after lapse of about 5 years from the date of order passed in the original application, i.e., 30.06.2005 and thereafter, he has been granted promotion as junior clerk giving continuity from 1.11.2005, but however without any monetary benefit.

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The applicant has filed a Miscellaneous Application being M.P.83(C) of 2010 praying therein to issue direction upon the opposite parties to pay differential arrear for the period from 1.11.2005, up to the date of granting notional promotion on 23.7.2009, which the Tribunal has allowed by order dated 13.2.2014.

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The State of Odisha has assailed the said order in the instant writ petition on the ground that the miscellaneous application is not maintainable after the original application having been disposed of way back in the year 2005.

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Learned counsel for the State-petitioners has submitted that on this ground alone the order impugned is fit to be set aside.

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Per contra, learned counsel for the applicant/opposite party no.1 has vehemently refuted the submission of the learned counsel for the Statepetitioners by submitting that it is not correct that the miscellaneous application has been filed after disposal of the original application so that it could be dismissed, rather the fact is that the miscellaneous application has been filed in pursuance to the observation made by this Court in W.P.(C) No.20458 of 2009 wherein the order has been passed on 14.1.2010, by which, liberty has been granted by this Court to file an application for modification of the order passed by the Tribunal, in terms thereof the miscellaneous application has been filed.

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We have heard learned counsel for the parties and perused the documents available on record.

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There is no dispute about the fact that after disposal of the original application, the miscellaneous application is not maintainable.

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But the factual position in the instant case is quite different. The applicant has approached this Court by way of another writ petition being W.P.(C) No.20458 of 2009, which was filed for quashing the order dated 8.10.2009 passed by the Tribunal in C.P. No.77(C) of 2006 arising out of O.A. No.604 of 1990. We, after going through the order passed in C.P. No.77(C) of 2006, have found that the C.P. was filed for non-compliance of the order passed

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by the Tribunal, but the Tribunal even after making observation regarding entitlement of the arrears of differential salary, has dropped the contempt proceeding with the assurance that the respondents would implement the orders of the Tribunal within the time framed, however, the same would be subject to the outcome of the Writ Petition No.8661 of 2006 pending before this Court.

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The main ground taken by the petitioners in challenging the order passed in C.P. No.77(C) of 2006 is that the Tribunal ought not to have dropped the contempt proceeding without its material compliance, this Court by order dated 14.1.2010 while disposing of the writ petition, thought it proper to pass a direction giving liberty to the opposite party no.1 to approach the Tribunal for modification of the same with a direction that if such an application is filed by the opposite party no.1 within ten days from today, the Tribunal shall take up the same and dispose of the same within thirty days thereafter.

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It is evident from the order dated 14.1.2010 that liberty has been granted by this Court to the opposite party no.1 to make the miscellaneous application for modification of the order. It is further evident from the order dated 13.2.2014 that the miscellaneous application has been filed in pursuance to the order dated 14.1.2010 passed by this Court in W.P.(C) No.20458 of 2009. The Tribunal, after taking note of said order, has entertained the miscellaneous application, directed the authorities to pay the arrears of differential salary from 1.11.2005 to 23.7.2009 in accordance with the order passed in the original application. As such, the contention raised by the learned counsel for the State

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of Odisha has got no force since the miscellaneous application has been filed in pursuance to the liberty having been granted by this Court in W.P.(C) No.20458 of 2009, and the State of Odisha, has not challenged the order passed by this Court in W.P.(C) No.20458 of 2009.

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So far as the merit of the case is concerned, it is evident from the order impugned that the applicant/opposite party no.1 was allowed to continue as junior clerk even after the order of reversion and as such, he has discharged his duty of the said post till he has been granted actual promotion by virtue of order passed by the Tribunal in O.A. No.604 of 1990. It is further evident that the Tribunal has directed to convene a meeting of Departmental Promotion Committee while disposing the original application on 30.06.2005 with a direction to conclude the process within three months, but the authorities, in gross violation of the said order, has convened the meeting of Departmental Promotion Committee on 20.3.2009 and as such, there is delay of four years in granting promotion to the applicant/opposite party no.1 as junior clerk for no fault of his own and the Tribunal after taking note of this aspect of matter has passed order directing to pay differential arrear of the applicant/opposite party no.1 for the period from 1.11.2005 to 23.7.2009 in accordance with the order passed in the original application.

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It is settled that if any direction passed by the court of law, it has to be complied with in its letter and spirit. Here in the instant case, the direction passed by the Tribunal way back in the month of June, 2005, the order has been assailed before this Court, but no interim order has been

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passed. Hence, it was the duty of the State authorities to convene the meeting of Departmental Promotion Committee as per the direction passed by the Tribunal in O.A. No.887 of 1990, in terms thereof, the O.A. No.604 of 1990 has been disposed of on 30.6.2005. In view of such a situation, the order passed by the Tribunal cannot be said to be improper.

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Considering the facts in entirety and also considering the fact that the writ petitions, namely W.P.(C) Nos.8661, 8992 and 4687 of 2006 wherein the order passed in O.A. No.887 of 1990 by the Tribunal has been assailed, which has been approved by this Court vide order passed today, i.e., on 6.7.2017, we are not inclined to interfere with the order passed by the Tribunal.

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Accordingly, the writ petition stands dismissed.

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…..… …………… ….…..………….…. S.N. Prasad, J. Sanju Panda, J.

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Orissa High Court, Cuttack, Dated the 6^th July, 2017/D. Aech

State of Odisha v. Nirmal Ch.Nayak

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State of Odisha v. Nirmal Ch.Nayak

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