Bijay Kumar Parida and Others vs State of Orissa and Others

P.K. Balasubramanyan, C.J.—The prayer in this writ petition is for the issue of a writ of mandamus directing the opposite parties to make the payment of the arrears of salary of the Petitioners calculating the same as per the Rules of Pay as have been made from time to time within a specific period fixed by this Court. According to the Petitioners, they were appointed by the Notified Area Council, Nimapara on ad hoc basis; that they have not been paid their salary for the period they worked; and that the direction as sought for be issued. It is seen that the Petitioners had approached this Court earlier on OJC No. 617 of 1996, and therein this Court directed the Government and the Notified Area Council to pay the contractual amount as per the recommendation of the Selection Committee until regular posts were sanctioned by the Government. This Court also directed the State Government to take a decision regarding sanction of posts and after the sanction of posts, to take the question of regularisation of services of the Petitioners for consideration. The Notified Area Council (hereinafter referred to as the ''NAC'') went up in appeal challenging the decision of this Court. In Civil Appeal No. 4282 of 1999, the Supreme Court set aside the judgment of this Court and allowed the appeal. The Supreme Court noticed how irregular and illegal the entire selection process was and how at the behest of the Chairman of the NAC the appointments had been made by the Executive Officer without even the posts being sanctioned by the State in the Octroi establishment. The Supreme Court also noticed that the Chairman and the Executive Officer of the Notified Area Council had acted beyond their jurisdiction as regards the selection of the present Petitioners and had further committed serious illegalities to the direct knowledge of the Executive Officer and at the instance of the Ex-Chairman and some councillors. The Supreme Court observed that with such materials available on record, the High Court should not have ignored the same and issued the direction indicated above. It was thus that the appeal was allowed and the judgment of this Court was set aside in its entirety. In conclusion their Lordship also observed thus:

Notwithstanding out allowing the appeals, if the Respondents are entitled to any arrears for the services already rendered the same they be paid.

(emphasis supplied)

It is seen that pursuant to the judgment of this Court which was subsequently set aside in appeal, the Government issued Annexures 5 and 6 orders directing that some of the workers may be regularised. Annexure-6 order makes specific reference to the direction of this Court in OJC No. 617 of 1996 in support of that order. These orders passed earlier on the basis of the decision of the High Court clearly lose their efficacy in view of the Supreme Court setting aside the judgment of this Court in to to by its judgment dated 17.7.2001. Therefore, the argument of the counsel for the Petitioner that in light of Annexure 5 and 6 orders the Petitioners are entitled to relief cannot be accepted. Those orders, Annexures 5 and 6 stand superseded by a decision of the Supreme Court in, Annexure-1. Whether the Petitioners herein have sought review of the judgment of the Supreme Court and whether such petition for review is pending are not matters with which we are concerned at the moment. As far as this Court is concerned, as on today this Court is governed by the decision of the Supreme Court in Civil Appeal No. 4282 of 1999.

Today, the Petitioners have filed Anr. affidavit along with a xerox copy of letter No. 35828/HUD dated 21.9.2001 (Annexure-7) from the D.M.A. and Ex Officio Additional Secretary to Government, Housing and Urban Development Department to the Executive Officer, Nimapara Notified Area council directing the NAC to pay the arrears salary/wages, if any, as soon as possible to the Petitioner under intimation to the concerned Department.

In their counter affidavit, the Notified Area Council has submitted that they have sought for ex gratia sanction from the Government and until substantial amounts are received by way of special grants, payment could not be made. The Notified Area Council has also stated that steps are being taken for payment of arrears of salary to the Petitioners from the monthly grant received from the State Government in lieu of octroi. We may note here that the octroi was abolished by the State.

Learned Additional Government Advocate submitted that the Government could not direct those appointments made by the Notified Area Council to be regularised, and when the Notified Area Council makes the appointment it is for the Notified Area Council to find the finance for paying salaries of those employees. Learned Counsel for the NAC does not dispute this position. What he submits is that unless the amounts are sanctioned by the Government the NAC cannot make the payment. Since the liability was substantial, attempts are being made to pay the amounts from the annual grants paid to the Notified Area Council in lieu of abolition of octroi. The Notified Area Council in its counter affidavit has not indicated that no body has ever decided that these Petitioners were in fact entitled to any arrears for the period of service already rendered as directed by the Supreme Court.

According to the learned Counsel for Petitioners, since the Petitioners have worked during the relevant period, they were entitled to be paid an in the light of Annexure-7 communication, it was the liability of the Notified Area Council to make the payment. He submits that in that context mandamus prayed for may be issued.

From the facts noticed above, we see no ground for issuing any writ of mandamus directing the State of Orissa, Opposite party No. 1 to pay the arrears of salary based on the ad hoc appointments claimed by the Petitioners. But, in the light of the direction of the Supreme Court it is for the Notified Area Council to consider whether these Petitioners are entitled to any arrears of salary for the services they had rendered to the Notified Area Council and to make provisions for its payment if they are found eligible, Annexure-7 issued by the Government also directs the Notified Area Council to do what is necessary in the light of the direction of the Supreme Court. The Notified Area Council has also taken the stand that it can pay as and when funds are available with it. In this situation, all that is needed is to direct the Notified Area Council, Opposite party No. 2, to consider whether the Petitioners are entitled to any arrears towards salary for the services they had rendered and if they are found eligible for the same in the light of the direction of the Supreme Court, to make payment of such arrears as expeditiously as possible.