BIJAY KUMAR PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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 toto 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.

(2.) TODAY , the petitioners have filed another 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.

(3.) 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.