Statutory rules must be adhered to over administrative clarifications, enabling affected parties to seek remedy through formal representation.

ORDER :

Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. The present Writ Petition has been filed inter alia with the following prayer:-

“Under the facts and circumstances indicated above, this Hon'ble Court may be graciously pleased to issue rule NISI calling upon the Opp. Parties to file their show cause furnishing the reason as to why;

i. Writ in the nature of Certiorari shall not be issued quashing letter/order dated 12.04.2022 (Annex.3) and further quashing/modifying clarification dated 01.02.2024 (Annex.4) holding the same is/are contrary to the ORSP Rules, 2017 so also against the benevolent Scheme of MACP;

ii. Writ in the nature of Mandamus shall not be issued directing the Opp.Parties to extend the benefit of the MACPs to the petitioner as per Sub Rule-(v) of Rule-13 read with Rule-12 (1) of the ORSP Rules, 2017 by way of adding one increment in their pay in Level-5 and further addicting GP of Rs.4200/- for completion of 10 years of service and placing him in Level-6 in appropriate Cell;

iii. To direct the Opp.Parties to extend the benefit of MACP as per rules from the date of entitlement & arrears thereof;

If the Opp. Parties failed to file any show cause or show insufficient cause, the rules may be made absolute.

And pass any other order/orders as this Hon'ble Court deem fit and proper in the interest of justice;

And for this act of kindness, the petitioner is duty bound shall ever pray.”

4. It is contended that Petitioner while continuing as Panchayat Executive Officer (PEO), in terms of the notification issued by the Finance Department on 20.09.2017 under Annexure-1 framing ORSP Rules, 2017, Petitioner became eligible to get the benefit of pay fixation as per the 1st Schedule enclosed to the said rules. As per the said Schedule, Petitioner became entitled to get the benefit of the pay fixation under Level-VI, Cell-15. But contrary to the provisions contained under the said rules, which has got statutory force, Government in the Panchayatiraj Department-Opposite Party No.2 issued the impugned clarification on 12.04.2022 under Annexure-3, whereby Petitioner was deprived to get benefit of pay fixation under Level-VI, Cell-15 with the grade pay as due and admissible.

4.1. It is contended that once a rule is framed taking recourse to the provisions contained under Article -309 of the Constitution of India, the same could not have been clarified in the manner it has been done by the Panchayatiraj Department-Opposite Party No.2, while issuing the impugned letter dtd. 12.04.2022 under Annexure-3.

4.2. It is contended that in terms of ORSP Rules, 2017 which has got statutory force, Petitioner’s pay should have been fixed under Level-VI, Cell-15. But in view of the impugned clarification issued by the Panchayatiraj Department on 12.04.2022, his pay has been fixed differently, which is not sustainable in the eye of law.

4.3. It is however contended that on the face of such, clarification issued under Annexure-3, some of the employees similarly situated and continuing as PEOs, have got the benefit in terms of the schedule appended to ORSP Rules, 2017 vide order issued on 04.01.2024 under Annexure-6-Series. One Akhaya Kumar Samal, PEO, Rasulpur Block, Jajpur being placed at Sl. No.44 of order dtd. 04.01.2024, has got his pay fixed as per the 1st Schedule appended to ORSP Rules, 2017.

4.4. It is contented that while benefit in favour of the aforesaid Akhaya Kumar Samal has been extended in terms of the provisions contained under ORSP Rules, 2017, but Petitioner’s pay has been fixed basing o