Union of India Vs Nabin Kumar Senapati

Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Apr-2025 19:41:41

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This matter is taken up through Hybrid arrangement (video conferencing/physical mode). This is an application for condonation of delay. The Stamp Reporter has placed a note at Flag „C‟ wherein it is stated that delay in a writ petition is not pointed out and stamp reporting has not been made to that effect.

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In view of such report furnished by the Stamp Reporter, the learned counsel for the petitioners does not want to press this interim application.

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Accordingly, the I.A. stands disposed of as not pressed.

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( S.K. Sahoo)

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Judge

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(Chittaranjan Dash)

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Judge

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W.P.(C) No.5178 of 2025

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Heard Mr. Pushparaj Bharadwaj, learned Central Govt. Counsel appearing for the petitioners.

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This writ petition has been filed by the petitioners - Union of India represented through its Secretary -cum- DG of Posts, New Delhi and Chief Post Master General, Odisha Circle, Bhubaneswar seeking a direction to quash the order dated 04.01.2024 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack (in short, „Tribunal‟) in O.A. No.14 of 2016 under Annexure-1.

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It appears that the applicant- opp. party no.1 Nabin Kumar Senapati filed the aforesaid Original Application challenging the order of the petitioners in denying him the pay for the post of the Senior

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Superintendent, RMS „N‟ Division, Cuttack in which he was ordered to work with a prayer to pay the salary sanctioned to the STS Group-A post of SSE RM RMS „N‟ Division in which he was working with a further direction to the petitioners to revise the pension and pay other pensionary benefits as admissible under law.

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The case of the opp. party no.1 is that he had been serving as a Senior Superintendent, Post Offices, Sundargarh Division from 05.07.2002 to 20.06.2004 and then he was transferred and posted as Senior Superintendent RMS „N‟ Division, Cuttack, where he worked from 30.06.2004 to 31.10.2006 on a temporary and ad-hoc basis till his retirement on superannuation. Upon not receiving his dues for his duty till his retirement, he made representation dated 15.12.2009 before the authorities for the pay of his post since the post of SSRM RMS „N‟ division is a permanent post in the STS Group-A cadre and carries a definite rate of pay without any time limit. Since he received no response from the petitioners, he filed an application under the Right to Information Act seeking information regarding the status of his representation and he came to know that his representation is yet to be received by the staff of the petitioners. Then, he again submitted

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representations dated 21.03.2012 and 18.09.2012 to sanction the pay for the post of SSRM RMS post. The representation dated 21.03.2012 of the applicantopp. party no.1 was rejected on 08.10.2012 on the ground that the status of a post in Group-A of Indian Postal Services Group-A (JTS/STS) is linked to the status of the officer. It is the further case of the opp. party no.1 that he awaited the decision regarding the representation dated 18.09.2012 and on 18.09.2013 only he was informed that as per the statutory rules, the promotion of Junior Time Scale Officer to Senior Time Scale Officer requires four years of regular service in the Junior Time Scale Officer post. Thereafter, the opp. party no.1 submitted another representation on 18.12.2013 and since no response was received, he approached the learned Tribunal by filing O.A. No.624 of 2014 and the same was disposed of by the learned Tribunal with a direction to the petitioners to consider the opp. party no.1‟s representation and to pass order within a period of two months and since the representation yielded no fruitful result, he again approached the learned Tribunal in filing O.A. No.14 of 2016.

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After issuance of notice in the said O.A., the petitioners filed their counter affidavit stating therein that the opp. party no.1 was working on ad-hoc basis

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as Senior Superintendent in RMS „N‟ Division, Cuttack and his posting was circle level arrangement to meet local level requirements and he was later promoted to Junior Time Scale of Indian Postal Service Group-A on regular basis vide order dated 13.01.2006. It is the further case of the opp. party no.1 that as per Department of Posts, New Delhi Memo No.4-27/97SPG dated 27.07.1999, if the post holder has been holding Group-A post for four years, then the post is deemed to be in JTS and the post can be considered as STS when the post holder gets promoted to the STS grade through DPC after four years of service in the JTS post and since the opp. party no.1 had worked in an ad-hoc JTS Officer from 30.06.2004 to 29.01.2006 and as a regular officer in the same post of SSRM, RMS „N‟ Division, Cuttack from 30.01.2006 to 31.10.2006 till his retirement, he is entitled to benefit of that of a JTS Officer.

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The opp. party no.1 filed rejoinder to the counter affidavit of the petitioners stating therein that the instructions mentioned are not the amendment to the rules concurred by the President of India in DoPT OM No.997012/2014-Esst(pay) dated 26.06.2014 and thus, those instructions did not have any overriding effect.

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The learned Tribunal after going through the pleadings and hearing learned counsel for both the parties, came to hold that admittedly opp. party no.1 while working/officiating as Sr. Superintendent of Post Offices, Sundargarh Division on ad-hoc basis in JTS Group-A cadre was transferred and posted as Sr. Superintendent, RMS „N‟ Division, Cuttack (STS Group Cadre) on 08.06.2004 and he was given regular promotion to the post of JTS Group-A cadre on 13.01.2006 and he continued in the post of Sr. Superintendent, RMS „N‟ Division, Cuttack and retired on superannuation on 31.10.2006.

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Taking into the relevant portion of FR 11 and FR 49(i) and also the ratio laid down by the Hon‟ble Supreme Court in the case of State of Punjab & another -Vrs.- Dharam Pal reported in (2017) 9 Supreme Court Cases 395 , the learned Tribunal held as follows:-

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“18. In the instant case the applicant had worked in the higher post from 08.06.2004 to 31.10.2006. Even though the respondents contend that it was a local level arrangement but this Tribunal is of the opinion that local level arrangement should be a temporary one and not a continuous for more than two years. The applicant had worked in the post carrying higher pay and higher responsibilities for which he would have been held responsible for his omission

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and commission and thus his claim for higher pay during holding of such post and responsibilities is valid and the respondents are under obligation to consider the same. However since the applicant even though retired from service in the post of Sr. Supdt RMS N Division Cuttack but he was never regularly promoted to the cadre of STS and hence retired as JTS Group A Cadre officer, hence his prayer for calculating pension at higher rate is not admissible.”

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It is pertinent to note that in the case of Dharam Pal (supra) , the Hon‟ble Supreme Court held as follows:-

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“16. In Tilak Raj [ State of Haryana -Vrs.- Tilak Raj , (2003) 6 SCC 123] , the issue arose regarding justification of grant of minimum pay in the scale of pay applicable to the regular employees to the daily wagers. A two-Judge Bench referred to various decisions and came to hold thus : (SCC p. 127, paras 11-12)

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“11. A scale of pay is attached to a definite post and in case of a daily-wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile

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discrimination before becoming eligible to claim rights on a par with the other group vis-à-vis an alleged discrimination. No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of “equal pay for equal work” is an abstract one.

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Equal pay for equal work” is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.”

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On a careful perusal of the said decision in its entirety, we are of the considered opinion that it is not an authority for the proposition canvassed by the learned counsel for the appellants. It remotely does not support the principle that is assiduously sought to be built by the State.”

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The relevant portion of FR 11 and FR 49(i) are quoted herein below:-

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“ F.R.11 -Unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him, and he may be employed in any manner required by proper authority, without claim for additional remuneration; whether the

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services required of him are such as would ordinarily be remunerated from general revenues, from a local fund or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government."

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" F.R.49 (i) - Where a Government servant is formally appointed to hold full charge of the duties of a higher post in the same office as his own and in the same cadre/line of promotion, in addition to his ordinary duties, he shall be allowed the pay admissible to him, if he is appointed to officiate in the higher post, unless the Competent Authority reduces his officiating pay under Rule 35; but no additional pay shall, however, be allowed for performing the duties of a lower post."

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Learned counsel for the petitioners raised the same points which were canvassed before the learned Tribunal, but we find that the learned Tribunal has rightly taken note of the ratio laid down in the case of Dharam pal (supra) , which is befitting to the fact of this case and therefore, the learned Tribunal has rightly quashed the order dated 24.06.2015 as illegal and directed the petitioners to pay the higher pay to the opp. party no.1 while officiating in the post of Sr. Superintendent, RMS „N‟ Division, Cuttack within a period sixty days from the date of receipt of the copy of the order.

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After hearing learned counsel for the petitioners and going through the impugned order carefully, we find no illegality and impropriety in the impugned order which requires our interference. Accordingly, the writ petition fails and the same stands dismissed.

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Pending application (s), if any, also stands disposed of.

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Issue urgent certified copy as per Rules.

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( S.K. Sahoo) Judge

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(Chittaranjan Dash) Judge

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Sipun

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Union of India v. Nabin Kumar Senapati

Case brief

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Union of India v. Nabin Kumar Senapati

Case brief

What is this about?

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