STATE OF ORISSA Vs. DR. AJAYA KTUNAR MISHRA

JUDGEMENT

(1.) THE Petitioner -State of Orissa calls in the question the legality and validity of the order dated 28.6 2000 passed by the Orissa Administrative Tribunal, Bhubaneswar, (hereinafter referred to as the 'Tribunal') in O.A. No. 2503 of 1994 by which the original application has been allowed and the Petitioner -State of Orissa has been directed to refix the pay of the opposite party No. 1 as an Asst. Surgeon on the date of his entry into the State service by taking into consideration the last pay drawn by him in the earlier post under ICMR and also to calculate the increment and the arrears payable to him, and to pay the same within a stipulated time.

(2.) THE facts and circumstances giving rise to the present writ petition are that on 16.6.1977 opposite party No. 1, was initially appointed as Asst. Research Officer on temporary basis in the Regional Unit of National Nutrition Monitoring Bureau (for short, 'NNMB') by the Indian Council of Medical Research (for short, 'ICMR'). He got promotion to the post of Research Officer (Medical Officer) in the said institution in higher scale of pay of Rs. 700 -1300/ - with effect from 10.9.1981 by the ICMR. While continuing as such, the opposite party No. 1 was selected by the Orissa Public Service Commission (for short, 'OPSC') as Asst. Surgeon vide Notification No. 30118 dated 12.10.1984. Pursuant to such appointment, opposite party No. 1 submitted his resignation on 30.10.1984 from the post of Research Officer and, after acceptance of the resignation, he was relieved from the service of ICMR vide Letter No. 1015 dated 10.12.1984 with effect from 14.12.1984. Thereafter, he joined the post of Asst. Surgeon in the State Medical & Health Services Cadre by the Govt. of Orissa, Health & Family Welfare Department on 15.12.1984 vide Annexure -2. After joining the State Government service, he submitted a representation dated 3.7.1985 to the State Government with a prayer to count his past services by allowing him the benefit of pay protection. The Government rejected the representation of opposite party No. 1 vide Health and Family Welfare Department Letter No. 35202/H dated 2.7.1984.

(3.) PER contra, learned Counsel appearing on behalf of opposite party No. 1 submitted that NNMB is under the direct control and supervision of ICMR and is wholly financed by the I0MR. The ICMR is under the active control of the Health & Family Welfare, Government of India and is wholly financed by the Government of India. Since opposite party No. 1 was working under ICMR he is an employee of the Government of India. The F.D. Notification No. 315042/F dated 16.6.1980 nowhere prescribes that the same is only applicable to employees/servants of the State Government and not Central government. The notification does not make any distinction between the employees of Central Government and State Government. Government means both Central and State Governments as defined in Section 3(23) of the General Clauses Act, 1897 and Section 2(18) of the Orissa General Clauses Act, 1937. To get the benefit under the F.D. Notification dated 16.6.1980, one is to be an employee of either State government of Central Government and the employee should have submitted his resignation from the previous post prior to his joining the new post under the State Government. The ICMR vide letter dated 3/4th September, 1992 clarified that the pensionary benefit is payable to an employee of NNMB. Therefore, the writ petition is liable to be dismissed.