BIBHUTI BHUSAN MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27 -7 -1991 (Annexure -7) granting them the Class -lI gazetted status and the scale of pay of Rs. 1976 -2975/ - with effect from 1 -1.1 -1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1 -2 -1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365 -2385 with effect from 1 -11 -1986 as per the Government's Setter dated 30 -9 -1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/ - since the scale of pay applicable to the Private Secretaries than was Rs. 1350 -2975/ -. The petitioners made representation to the Hon'ble Acting Chief Justice on 21 -12 -1989 for removal of the anomaly and on 20 -2 -1990 vide Annexure -11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975 -2975/ - in Class -II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside - ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/ - with Class -II gazetted status with effect from 1 -11 -1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3 -6 -1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26 -6 -1991. In pursuance of the memorandum the resolution in Annexure -7 was published on 27 -7 -1991 both conferring Class -ll gazetted status on and granting the higher scale of pay of Rs. 2200 -3500/ - to the Private Secre - taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu - tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class -I carresponding to such upgradation made in the Govern - ment on 19 -3 -1987 vide Annexure -2 in the scale of Rs. 1975 -3300/ - and upgradation of two posts in the cadre of Private Secretaries as Senior Class -I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19 -3 -1987 and No. 17460 dated 19 -3 -1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.

(2.) THE submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1 -11 -1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26 -6 1991, the mere fact that the resolution was published on 27 -7 -1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26 -6 -1391 are fortuitous acts without any correlation with the subject -matter of consideration 27 -7 - 1991 as the cut -off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1 -11 -1986 till. 27 -7 -1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.

(3.) THAT the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3 -6 -1991 in these words :