Chief Secretary To Government Of Odisha And Others vs Ashok Kumar Tripathy And Another

B.P. Routray,J.

The State-Respondents before the Odisha Administrative Tribunal (in short 'Tribunal') have come up in the present writ petition in challenging order dated 5th February, 2015 passed in O.A. No.300 of 2012.

The present Opposite Party No.1 was the applicant before the learned Tribunal. He filed the O.A. with the prayer as follows:

"i. The Hon'ble Tribunal may be pleased to direct the Respondents to give the applicant benefit of protection of pay by taking into account his last drawn in DRDA under Panchayatraj Department and to revise his pay accordingly.

ii. The Hon'ble Tribunal may further be pleased to direct the Respondents to count his previous services in DRDA from 19.09.1992 to 05.09.1997 towards qualifying service for pension and pensionary benefits as per law.

iii. The Hon'ble Tribunal may further be pleased to direct the Respondents to sanction and pay the differential amount on the event of revision of his pay taking into account his last pay drawn in the DRDA.

iv. The Hon'ble Tribunal may further be pleased to direct the Respondents to give all other financial and consequential service benefits on the event of counting his previous 5 years service in the DRDA under the Panachayatraj Department for all purposes."

The case of the applicant was that he is presently working as Junior Engineer (Civil) in (R & B) Division, Parlakhemundi under the control of Engineer-in-Chief, Odisha. He was initially appointed as J.E.

by the Panchayatraj Department on 4th November, 1992 and joined on 19th November, 1992. He continued as such till 7th November, 1997 and joined as J.E. (Civil) in Works Department under the control of E.I.C.(Civil), Odisha pursuant to his selection as such. He prayed for protection of his pay as per the last pay drawn under Panchayatraj Department and upon transmission of his service book, his prayer to protect his pay by counting the previous service period from 19th November, 1992 to 7th  November, 1997 was rejected by the E.I.C.(Civil), Odisha by order dated 7th April, 2006. Upon rejection of his prayer for protection of pay, he submitted a representation to the authority concerned for reconsideration of the same. Since nobody pays any heed to the same, he ultimately approached the learned Tribunal with the prayer afore-stated. The specific pleading of the applicant to this effect made at para 6.3 of the Original Application is re-produced below:

"6.3. That, it is respectfully divulged that after receipt of the Service Book and L.P.C. from the D.R.D.A, Rayagada, the Respondents did not count his past services in the organization for protection of his pay as per Rule. Therefore, the applicant had approached his immediate authorities for doing the needful to give him the financial benefits taking into account his previous 5 years of services in the Panchayatraj Department. But unfortunately the authorities did not pay any heed to his requests and ipso facto the applicant has been constrained to submit a representation to the E.I.C.-Cum-Secretary to Govt., Works Department praying therein for giving him the protection of pay by taking into account his previous service from 19.09.1992 to 05.09.1997 in the D.R.D.A. under the Panchayatraj Department vide his letter dtd.15.05.2006 under Annexure-7. However, the said representation was rejected by the Respondents mechanically and without application of mind vide order dtd.04.04.2006 under Annexure-8. It seems this order is a non-speaking and bald order which has been passed without examining the relevant Rules and procedures of the Govt."

The State authorities filed their counter affidavit before the learned Tribunal denying the claim of the applicant that in view of Finance Department Office Memorandum No.35361 dated 19th June, 2001 and 39986 dated 26th August, 2002, his case was rejected. The specific averments taken in the counter affidavit is as follows:

"On examination of the representation dt.15.12.97 and reminder dt.17.3.06, his case was rejected vide E.I.C. (Civil) letter No.14777 dt.7.4.06 (Annexure-8 of the O.A.) in terms of Finance Department O.M. No.35361 dt.19.6.01 and No.39986 dt.26.8.02. xx .... xx .. xx .. It is not known to the O/O the Respondent No.3 if the applicant had submitted any representation to the Respondent-1 & 2. The present position of such representation also not known to the Respondent No.3."

The learned Tribunal upon adjudication directed to count the previous service of the applicant from 19th November, 2019 to 5th November, 1997 in D.R.D.A. towards qualifying service and further to extend the benefits of protection of pay taking into account the last pay drawn by him in Panchayatraj Department and accordingly to revise the pay along with disbursement of differential amount. While directing so, the learned Tribunal did not discuss anything on rejection of the prayer of the applicant by the authorities concerned earlier.

As mentioned above, it is clear that the claim of the present O.P.No.1 was rejected by Engineer-in-Chief (Civil), Odisha (present Petitioner No.2 and Respondent No.3 before the learned Tribunal). The applicant (O.P.No.1) did not question such rejection order dated 7th April, 2006 before the learned Tribunal though it has been pleaded in clear terms about such rejection by the authority. The learned Tribunal in the impugned order has though mentioned in paragraph-3 about that rejection order passed by the authority, but did not make any further discussion on the same and proceeded with the matter to examine the prayer of the applicant on merit. The learned Tribunal by referring to different circulars and Government Orders issued from time to time for grant of pay protection, has directed in favour of the applicant by holding that the office memorandum dated 26th August 2002 is not applicable to the case of the applicant.

Keeping in view the nature of pleadings, the question arises that, whether the prayer of the applicant to grant him protection of pay is maintainable without any challenge to the rejection order dated 7th April, 2006.

Normally the petitioner would have come to the court challenging order dated 7th April, 2006 had he been aggrieved with the same. But he did not and remained quiet for a long period till 2012. After lapse of six years he approached the tribunal for grant of the relief without challenging the rejection order of the authority. It is not the case of the applicant that he was unaware of such rejection order. Rather the said order of rejection was annexed at Annexure-8 to the O.A. and both parties have their specific pleadings on the same. Undoubtedly the rejection order dated 7th April, 2006 stands on the way to grant the relief in favour of the applicant. Thus, it was incumbent upon the applicant to challenge that rejection order before praying for relief of pay protection.

Under such circumstances in our considered opinion, the prayer of the applicant to grant relief of protection of pay is not maintainable in absence of challenge to the rejection order dated 7th April, 2006. The learned Tribunal has thus, committed error in granting relief to Opposite Party No.1 without giving any finding on the rejection order.

For the reasons stated above, the writ petition is allowed and the impugned order dated 5th February, 2015 is set aside.

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