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IN THE HIGH COURT OF ORISSA
S.K. Mohanty, L. Rath, JJ.
BIBHUTI BHUSAN MOHAPATRA AND OTHERS - APPELLANT
Versus
THE STATE OF ORISSA AND OTHERS - RESPONDENT
Original Jurisdiction Case No. 5780 of 1991
Decided On : 22-04-1994
PRIVATE SECRETARIES - CONDITIONS OF SERVICE - ORISSA HIGH COURT (CONDITIONS OF SERVICE OF STAFF) RULES, 1963 - RULE 7(1) - INTERPRETATION - APPLICABILITY OF RULES AND ORDERS OF GOVERNMENT SERVANTS HOLDING CORRESPONDING POSTS - INSUFFICIENT PROVISION IN THE RULES - ENTITLEMENT TO HIGHER SCALE OF PAY AND CLASS-II GAZETTED STATUS - EFFECTIVE DATE.
Fact of the Case:
Private Secretaries of the Judges of the Orissa High Court sought retrospective operation of the Home Department's resolution granting them Class-II gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1-1986. The petitioners claimed that the anomaly arose because the Personal Assistants of the Judges of the Orissa High Court were allowed a higher scale of pay, making their pay lower than their inferiors in service. The Chief Justice recommended equalisation of the scale of pay of the Private Secretaries of the Court with that of the Private Secretaries of the State Secretariat, which was approved by the Cabinet. However, the resolution was published on 27-7-1991, making it effective from that date.
Finding of the Court:
The Court held that the Private Secretaries of the Court were entitled to the same scale of pay and other benefits as their counterparts in the Secretariat from the same date as they received it. The Court interpreted Rule 7(1) of the Orissa High Court (Conditions of Service of Staff) Rules, 1963, which provides that the conditions of service of Court servants shall be regulated by the rules and orders applicable to Government servants holding corresponding posts, subject to modifications, variations, or exceptions specified by the Chief Justice. The Court held that where the Rules have made insufficient provisions, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court.
Issues: 1. Whether the Private Secretaries of the Court were entitled to the same scale of pay and other benefits as their counterparts in the Secretariat from the same date as they received it. 2. Whether Rule 7(1) of the Orissa High Court (Conditions of Service of Staff) Rules, 1963, allowed for the ipso facto application of the rules and orders applicable to Government servants holding corresponding posts, in cases where the Rules made insufficient provisions.
Ratio Decidendi: 1. The Court held that the Private Secretaries of the Court were entitled to the same scale of pay and other benefits as their counterparts in the Secretariat from the same date as they received it, based on the following grounds: - The Private Secretaries of the Court held corresponding posts to the Private Secretaries of the Secretariat, as acknowledged by the State Government in a memorandum. - Rule 7(1) of the Orissa High Court (Conditions of Service of Staff) Rules, 1963, provided for the ipso facto application of the rules and orders applicable to Government servants holding corresponding posts, in cases where the Rules made insufficient provisions. - The scale of pay prescribed for Private Secretaries in the Rules was insufficient, as it rendered them entitled to a lower pay than their inferiors in service, creating an anomaly. 2. The Court interpreted Rule 7(1) of the Orissa High Court (Conditions of Service of Staff) Rules, 1963, to mean that where the Rules have made insufficient provisions, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court, subject to modifications, variations, or exceptions specified by the Chief Justice.
Final Decision: The petition was allowed, and the petitioners were declared entitled to get the scale of pay of Rs. 1975-2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200-3500/- with effect from 1-5-1989, and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ was issued accordingly, directing the opposite parties to calculate and pay the arrear pay of the petitioners within three months from the date of receipt of the writ from the Court.
JUDGMENT :
L. Rath, J. - 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 Privat
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