Md.Ekram Vs Principal Secy,Depa

ORISSA HIGH COURT : CUTTACK

W.P.(C) No.14608 of 2013

In the matter of an Application under Articles 226 & 227 of the Constitution of India, 1950

Md. Ekram Aged about 59 years Son of Late Md. Yusuf At/P.O.: Bhimrajpur Via : Rameswar, P.S.: Jagatpur District: Cuttack. … Petitioner;

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-VERSUS-

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1. Principal Secretary Department of Water Resources & Chairman of Odisha Lift Irrigation Corporation Ltd. At: Secretariat Building Rajiv Bhawan, P.O.: Bhubaneswar District: Khordha.

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2. Managing Director Odisha Lift Irrigation Corporation Ltd. At: Post Box No.155 Plot No.: N-17/2, Nayapalli, Bhubaneswar District: Khurda.

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3. Superintending Engineer (Central Circle) Odisha Lift Irrigation Corporation Ltd.

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W.P.(C) No.14608 of 2013

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Cuttack, At: Jobra Town/District: Cuttack.

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4. Executive Engineer Lift Irrigation Division, Bhubaneswar-12 New Power House At/P.O.: Bhubaneswar District-Khordha. … Opposite parties.

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Counsel appeared for the parties:

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For the Petitioner : Ms. Swetlana Das, Advocate For the Opposite party : Mr. Dayanidhi Lenka, No.1 Additional Government Advocate For the Opposite party : None Nos.2 to 4

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P R E S E N T:

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HONOURABLE

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MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 20.03.2025 :: Date of Order : 20.03.2025

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ORDER

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Aggrieved by inaction on the part of the Opposite Parties in not releasing the actual financial entitlement, the petitioner, a retrenched employee of the Odisha Lift Irrigation Corporation Limited, approached this Court invoking the provisions of Articles 226 and 227 of the Constitution of India, with the following prayer(s):

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“It is therefore, humbly prayed that direction be issued to the opposite parties to calculate the arrear salary of the petitioner and all retrenchment benefits from the original date of joining i.e., 22.04.1971 till the date of retrenchment on 30.04.2007, along with all the benefits be calculated as per Odisha Revised Scales of Pay Rules, 1998 w.e.f. 01.01.1996 and Odisha Revised Scales of Pay Rules, 2008 notionally w.e.f. 01.01.2006;

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And the differential amount be paid to the petitioner with immediate effect with interest;

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

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2. With suave submission, Ms. Swetlana Das, learned counsel appearing for the petitioner has demonstrated by referring to service particulars as given at Annexure-1 that the petitioner, retrenched Pump Driver, has entered into Government service on 22.04.1971. The service track record as given in tabular form vide Annexure-1 is reproduced hereunder:

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“Details of Service of Md. Ekram, Ex-P.D.

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Pre-Corporation period / Directorate of Lift Irrigation

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Date of entry	Designation	Period of engagement	Date of exit	Remarks
22.04.1971	Work charged Khalasi	22.04.1971 to 21.11.1972
22.11.1972	Work charged Pump Driver	22.11.1972 to 15.06.1973		On promotion to the post of W/c P.D.
16.06.1973	Work charged Helper	16.06.1973 to 30.09.1973	30.09. 1973	Consequent upon conversion of DLI into OLIC

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Corporation period

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01.10.1973	Work charge helper	01.10.1973 to 31.03.1974			Promoted to W/c P.D.
01.04.1974	Work charged Pump Driver	01.04.1974 to 30.06.1974	01.07.1974 to 15.07.1974		Breakage due to Retrenchmen t
16.07.1974	Work charged survey Khalasi	16.07.1974 to 31.07.1974	01.08.1974 to 11.09.1974		Breakage due to Retrenchmen t
12.09.1974	Work charged Helper	12.09.1974 to 07.06.1982	01.08.1975 to 03.08.1975, 22.10.1975 to 09.12.1975 & 28.03.1979		01.08.1975 to 03.08.1975 & 22.10.1975 to 09.12.1975 loss of pay due to absconding
08.06.1982	Work charged Pump Driver	08.06.1982 to 22.07.1986			On promotion to the Post of W/c P.D.
23.07.1986	Regular Pump Driver	23.07.1986 to 30.04.2007		30.04.2007	Retrenched as per restricting plan.

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2.1. Having taken this Court to Service Roll of the petitioner, copy of which is made available at page-8 of the writ petition for perusal of this Court, wherefrom it is manifest that the date of the entry of the petitioner in Government service was “22.04.1971”.

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2.2. With such facts on record, Ms. Swetlana Das, learned counsel vehemently contended that the petitioner should have been granted financial benefit and by not releasing the financial benefits in terms of the Odisha Revised Scales of Pay Rules, 2008 (in short “ORSP Rules, 2008”), which is made effective with effect from 01.01.2006, in

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respect of the employees working under the Odisha Lift Irrigation Corporation Ltd. (for short, “OLIC”), the opposite parties have not acted in consonance with the requirements of law; hence, this Court is required to show indulgence.

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2.3. Since the petitioner was not given his legitimate dues, he approached the Authority concerned by way of representation dated 29.09.2012 ( vide acknowledgement Computerized Serial No.1888, dated 06.10.2012 available at Annexure-6). Considering such representation made before the Grievance Cell, the Financial Advisor and Chief Accounts Officer of the OLIC treating the petitioner as if joined in the service on 08.06.1982 computed differential salary for the period from 08.06.1982 to 15.12.2003. Objecting to such erroneous computation, the petitioner has made prayer for appropriate direction to the concerned Authority to modify/rectify the same.

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3. Vide Order dated 20.08.2013, this Court directed for service of adequate number of copies of the writ petition on the counsel for the OLIC, pursuant to which a counter affidavit has come to be filed on behalf of opposite party Nos.2 to 4. The stance of the OLIC appears from paragraphs 4 and 9 of said counter, which are reproduced hereunder for better comprehension:

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“4. That at the outset before giving reply to the averments made in the writ petition it is humbly submitted that the retrenchment dues along with other dues as claimed by the petitioner as per the ORSP Rules, 1998 and 2008 are not applicable to the petitioner since the said rules were made applicable to Corporation Employees prospectively w.e.f. September, 2007 and 01.04.2011 respectively i.e. after retrenchment of the petitioner on 30.04.2007 for which the claim of the petitioner under ORSP Rules is not admissible to him. Besides the above, at no point of time petitioner was serving under Opp. Party No.4 i.e. Executive Engineer, Lift Irrigation Division, Bhubaneswar rather at the time of retrenchment petitioner was serving under Executive Engineer, Lift Irrigation Division, Cuttack. The writ petition should be dismissed on this score alone.

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9. That, in reply to the averments made in paragraph-7 of the writ petition it is humbly submitted that the retrenchment dues with other dues claimed by the petitioner as per ORSP Rules, 1998 and 2008 are not applicable to him since ORSP Rules, 1998 & 2008 are made available to the employees of this Corporation prospectively with effect from September 2007 & 01.04.2011 respectively which is after retrenchment of the petitioner. Hence, the petitioner is not entitled to the benefits as claimed.”

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4. Today, i.e ., 20.03.2025, this matter is listed for hearing on admission. None appeared for opposite party Nos.2 to 4 though Sri Satyabrata Mohanty and Sri T.K. Kamila,

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Advocates have filed Vakalatnama being executed by the Orissa Lift Irrigation Corporation Limited, Bhubaneswar on 02.09.2013 and filed counter affidavit. It is ascertained from the cause list that their names do appear, yet none represented opposite party Nos.2 to 4 in course of hearing today. However, Sri Dayanidhi Lenka, learned Additional Government Advocate represented the opposite party No.1.

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4.1. Since this matter is of the year 2013 and the petitioner is waiting for appropriate calculation of his salary/pay in accordance with the ORSP Rules, 2008, this Court did not feel inclined to adjourn the matter any further and proceeds with the matter.

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4.2. Heard Ms. Swetlana Das, learned counsel appearing for the petitioner and Sri Dayanidhi Lenka, learned Additional Government Advocate appearing for opposite party No.1.

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5. It is transpired on perusal of record that the petitioner joined the Government service during Pre-Corporation period, i.e ., on 22.04.1971 and continued till 30.04.2007, i.e ., the date of retrenchment. Such fact does emanate from the representation dated 29.09.2012 (Annexure-6), which remained uncontroverted. On careful scrutiny of Service Roll, copy of which forms part of the writ petition for consideration of this Court, it is

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apparent on the said document that date of entry in Government service is “22.04.1971”. Therefore, this Court opines that the perception of the opposite party Nos.2 to 4 at paragraph-4 in the counter affidavit to avoid grant of revised pay to the petitioner in accordance with ORSP Rules, 2008 is inconsistent. The said opposite parties misdirected themselves, as if the said Rules are made applicable to the Corporation employees with effect from September, 2007/2011. Such fact is not borne on record and finding of the opposite parties is de hors material available on record.

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5.1. Stemming on Letter No.OLIC-(Misc)-4/12-19869 dated 20.07.2012 issued by the Additional Secretary to Government of Odisha in Department of Water Resources, Ms. Swetlana Das, learned Advocate would strenuously argue that when it remained undisputed that the petitioner entered into Government service on 22.04.1971 and got retrenched on 30.04.2007, it is unwholesome on the part of the opposite parties to construed that the ORSP Rules, 1998 and 2008 would apply prospectively from September, 2007 and 01.04.2011 for such fact is contrary to such letter dated 20.07.2012 issued by the Government of Odisha.

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5.2. For appreciating such contention of Ms. Swetlana Das, learned Advocate it is felt apposite to extract the

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contents of the communication vide Letter dated 20.07.2012:

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“Government of Odisha Department of Water Resources

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No.OLIC-(Misc)-4/12-19869 / Dated 20/7/12

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From

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Sri R.K. Patra,

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Additional Secretary to Government

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To

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The Managing Director, Orissa Lift Irrigation Corporation Ltd., Bhubaneswar.

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Sub.: Implementation of O.R.S.P. Rules, 2008 in favour of the employees of Orissa Lift Irrigation Corporation Ltd.

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Sir,

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I am directed to invite a reference to your letter No.6167-OLIC., dt.21.5.2012 on the subject noted above and to communicate herewith the approval of Department of Water Resources for implementation of the provisions of O.R.S.P. Rules, 2008 for the employees of O.L.I.C. Ltd., notionally with effect from 1.1.2006 and actual financial benefit with effect from 01.04.2011 with the existing level of budgetary support @ Rs.30.00 crore per annum in 2012-2013 and 2013-2014 and approved the incentive structure with following stipulations.

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2. The incentive @Rs.50,000/- for each completed community L-I Point and @ Rs.10,000/- for each individual Bore Well/L.I.P. for the year „T‟ will be provided in the year „(T+1)‟ after verification of actual execution.

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3. The level of budgetary support will be reviewed in 2014-2015 keeping in view the man power position and requirement of funds for payment of salaries etc. of the employees of O.L.I.C. Ltd.

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4. The arrears from 1.4.2011 will be disbursed in 3 (three) annual installments.

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This has been concurred in by Finance Department vide their U.O.R. No.197-WII dt.7.6.2012.

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Yours faithfully, Sd/-

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Additional Secretary to Government

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Memo No.19870//WR., Dated 20/7/12

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Copy forwarded to Finance Department/P.E. Department/Guard File (2 spares) for information and necessary action.

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Sd/-

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Additional Secretary to Government”

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5.3. It is apparent from the said communication that the employees of the OLICL are entitled the benefits flowing from the provisions of the ORSP Rules, 2008 with effect from 01.01.2006. This Court is one with the submission

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of Ms. Swetlana Das, learned Advocate that since the retrenchment of the petitioner is admitted to have happened on 30.04.2007 and the aforesaid ORSP Rules, 2008 has been made effective from 01.01.2006, the petitioner is entitled for benefits in terms of the ORSP Rules, 2008 as spelt out in Letter dated 20.07.2012.

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5.4. To buttress her argument, Ms. Swetlana Das, learned counsel for the petitioner drew attention of this Court to an order dated 03.08.2007 passed by a Division Bench of this Court in a batch of matters being W.P.(C) No.4241 of 2004 , &c., wherein the present petitioner was one of the parties. It is beneficial to extract the Order dated 03.08.2007 hereunder:

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“ 23. 03.08.2007

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As all these writ petitions are identical in nature, they were, with the consent of counsel for the parties, taken up for hearing and disposal. As prayed for, leave is granted to the Corporation to adopt the counter affidavit filed by O.Ps.2 and 3 in W.P.(C) No.4241 of 2004 in other connected cases.

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Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the Orissa Lift Irrigation Corporation Ltd.

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The petitioners, who have been employed in the Orissa Lift Irrigation Corporation and are working in different capacities, have filed these writ petitions for a direction to the O.Ps. not to dispense with their

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services, who are declared as zero/surplus category.

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The Corporation has filed the counter affidavit and it is submitted by the learned counsel for the Corporation that in view of policy decision of the State Government, the Corporation due to dearth of work decided to reduce the staff strength and accordingly steps were taken for retrenchment of several surplus/zero category employees including the petitioners, in which some of the employees have already received their entitlement/benefit and left the Corporation.

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This being the position, we are not inclined to accede to the prayer of the petitioners to direct the O.Ps. not to dispense with the services of the petitioners and to pass any order for their continuance. So far as payment of compensation to the petitioners is concerned, the same shall be paid by the O.Ps. – Corporation. As to the claim of the petitioners for their arrear salary since April, 2007, we make it very clear that if the petitioners have worked and are entitled to the same, their entitlement shall be computed and paid to them along with the retrenchment benefit as early as possible .

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The writ petitions are disposed of with the above order.”

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5.5. It is trite that in the absence of any specific bar in law i.e . in any of the statute or the rules framed thereunder (in the present case, the ORSP Rules, 1998 and the ORSP Rules, 2008, are framed under Article 309 of the

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Constitution of India), the executive cannot usurp the power to legislature or the rule-making authority and by virtue of such executive fiat functionaries of the State Government cannot impose any restriction on the service conditions of the petitioner. [See, State of Jharkhand Vrs. Jitendra Kumar Srivastava, AIR 2013 SC 3383 and Hira Lal Vrs. State of Bihar, AIR 2020 SC 1027 ].

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5.6. It may be noted that the executive instructions do not have statutory character and, if such executive instructions runs contrary to express provisions of the ORSP Rules the same is liable to read down to the extent it is not in consonance with the Rules. Therefore, by way of executive fiat the right of the petitioner who has worked till his retrenchment on 30.04.2007 and the ORSP Rules, 2008 has been made effective from 01.01.2006, his entitlement would come within the fold of provisions of Article 300A of the Constitution of India.

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5.7. Emphasis is laid by the counsel for the petitioner on the directive of this Court vide Order dated 03.08.2007 passed in W.P.(C) No.4241 of 2004 , &c., wherein the petitioner is one of the petitioners, that the petitioner is entitled for arrear salary since April, 2007. Therefore, the petitioner is entitled for benefit in terms of ORSP Rules, 2008 treating his entry into Government service on 22.04.1971. In view of said order of the Division

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Bench of this Court, and the documents as forming part of the writ petition, without any ambiguity admits of the position that the petitioner is entitled to pay as per ORSP Rules, 2008 as he has worked with the OLIC till the date of his retrenchment.

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6. Under the aforesaid premises, the opposite party Nos.2 to 4 are requested to work out the claim of the petitioner in consonance with the discussions and observations made hereinabove granting him the financial benefit in conformity with the observations made in the Order dated 03.08.2007 of the Division Bench of this Court in W.P.(C) No.4241 of 2004 , and batch and by computing entitlement in tune with the ORSP Rules, 2008.

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6.1. As the petitioner has been retrenched since 2007, and bearing in mind his plight, it is deemed appropriate to direct the opposite party Nos.2 to 4, OLIC, to complete entire exercise within a period of eight weeks from the date of receipt of certified copy of this order, to be communicated by the petitioner to all the opposite parties.

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7. In the result, with the aforesaid observation and direction, this writ petition stands disposed of.

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Signature Not Verified

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Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 21-Mar-2025 13:30:39

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High Court of Orissa, Cuttack The 20^th March, 2025/MRS

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(MURAHARI SRI RAMAN) JUDGE

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Md.Ekram v. Principal Secy,Depa

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Md.Ekram v. Principal Secy,Depa

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