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State of Odisha v/s Ashokarani Mishra & Others

    W.P. (C) Nos. 26373 to 26389 & 26421of 2017 & 21772 of 2019 & 2033, 2286 of 2021

    Decided On, 24 June 2021

    At, High Court of Orissa

    By, THE HONOURABLE CHIEF JUSTICE DR. S. MURALIDHAR & THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI

    For the Petitioner: L. Samantaray, A.G.A. For the Respondents: Surya Narayan Patnaik, Advocate.



Judgment Text

1. This matter is taken up by video conferencing mode.

2. The present writ petitions have been filed challenging the order dated 7th February, 2019 passed by the Odisha Administrative Tribunal, Bhubaneswar (OAT) in a series of applications, where issues involved are identical in nature. Accordingly, all these writ petitions filed by the State of Odisha against the said orders are disposed of by this common order.

3. The common issue in all these writ petitions is whether the Opposite Parties, who are Staff Nurses, should get their revised pay scale, in terms of the Government Resolution issued on 26th June, 2013 prospectively, i.e. three years after their regularization or retrospectively, i.e. from the date of their regularization?

4. The OAT has answered the question in favour of the nurses and held that they would be entitled to the revised pay scale from the respective dates of their regularization. Consequently, the OAT quashed the clarification dated 17th May, 2015 issued by the Health & Family Welfare Department and an order dated 31st May, 2014 refixing the revised pay scale of the Opposite Parties as well as the letter dated 12th September, 2014 issued by the CDMO of various districts directing recovery of the excess payments. The OAT issued a positive direction to the Petitioner to pay the Opposite Parties the revised scale of pay in terms of the earlier order dated 1st March, 2014.

5. The background facts are that, each of the Opposite Parties was appointed as Staff Nurse on contractual basis. After completion of the contractual period of engagement, each of them was regularized in service in the scale of pay of Rs.5200- 20,200/- with a Grade Pay of Rs.2800/-.

6. Since they were not getting the salary component at par with their counterpart Staff Nurses in the Govt. of India, the Opposite Parties represented to the Petitioner. The matter of discrepancy in fixation of their salary was referred to the Anomaly Committee. After taking note of a comparative study of the entry level qualifications, service conditions, and the scale of pay in various states, the Anomaly Committee recommended upward revision of the pay scale and sent its proposal to the Petitioner State.

7. Acting on the said recommendation, in exercise of the power under Rule 9 of the Odisha Revision of Scale of Pay Rules, 2008 (ORSP Rules), the Petitioner restructured the pay scale for its Staff Nurses, but mandated that the revised pay scale would be payable on their completing three years of service in the regular scale of pay. The resolution dated 26th June, 2013 was issued to the above effect.

8. The question that then arose was whether the revised scale of pay would become payable only after completion of 3 years as regular Staff Nurse or would become payable from the date when the regularization in fact took place? Initially, the CDMOs understood the above resolution to mean that the revised pay scale would become available to the regular Nurses retrospectively from the date of their regularization. However, within a year on 17th May, 2014 the Health and Family Welfare Department issued a clarification stating that the revised pay scale would not have retrospective effect and that the resolution should be implemented from the date of its publication. Acting on this, the CDMOs issued fresh orders modifying the earlier instructions on the revision of the scale of pay, and across the board stating that it would be applicable only from 26th June, 2013. A further direction was issued on 31st May, 2014 that the excess dues already paid should be recovered from the salary of the Opposite Parties or they could opt to deposit the entire excess amount in one instalment.

9. This was then challenged before the OAT by the Opposite Parties by filing their respective applications. In the impugned order the OAT has noticed that there was nothing in the resolution dated 26th June, 2013 indicating that the revised pay would take effect only prospectively. Accordingly, the OAT proceeded to quash the subsequent clarification to that effect issued by the Petitioner.

10. As regards recovery of the excess pay, since each of the Opposite Parties was a Group-C staff, the OAT was of the view that the excess payment, if at all, could not be recovered on the strength of the judgment of the Supreme Court in State of Punjab v. Rafiq Masih (White Washer) 2015 (4) SCC 334.

11. This Court heard the submissions of Mr. L. Samantaray, learned Addl. Govt. Advocate for the State and Mr. Surya Narayan Patnaik and Mr. Prakash Kumar Rout, learned counsel for the Opposite Parties.

12. Once the Anomaly Committee recommended removal of anomalies and recommended the revision of the pay scale of regular Staff Nurses, clearly the revised pay scale would become applicable from the date of the regularization itself. The recommendation of the Anomaly Committee was not to the effect that the revised pay scale should be made available prospectively as and when it was notified by the Petitioner Government. That being the position, when the notification dated 26th June, 2013 was issued, the rider inserted by the Petitioner that it would become payable on completion of 3 years in the regular pay scale, was unwarranted. That did not reflect the true intention of the Anomaly Committee.

13. A parallel could be drawn with any other pay scale revision. For e.g., the National Pay Commission’s recommendations. There too, the discrepancies are sought to be removed by referring the matters to the Anomaly Committee, and whenever such Anomaly Committee clarifies the issue and recommends refixing the pay scale, that is given effect to from the date when the recommendation of the Pay Commission became effective. In other words, the operation of the revised pay scale would not be postponed to different dates, unless expressly stated in the notification for reasons to be given.

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14. In the present case there was no occasion to postpone the applicability of the revised pay scales to a later date. The original Government Resolution issued on 26th June, 2013 was not intended to make the revised pay scales applicable only from the date of such resolution. 15. Further, since the Opposite Parties are in Group-C posts, the decision in the case of Rafiq Masih (supra) would apply and no recovery of any alleged excess payment can be made. 16. Therefore, no grounds have been made out for interference with the impugned order of the OAT. The writ petitions are dismissed, but in the circumstances with no orders as to costs.
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