Orissa Power Transmission Corp.Ltd vs Khageswar Sundaray & Ors

Khageswar Sundaray & Ors. ... Respondents

O R D E R

A. K. PATNAIK, J.

Leave granted.

2. This is an appeal against the order dated 18.12.2007

of the Division Bench of the Orissa High Court in OJC

No.5768 of 1994.

3. The facts very briefly are that the Orissa State

Electricity Board (for short `the OSEB') decided in its

meeting held on 02.05.1970 that Lower Division Clerks

(for short `the LDCs') in the Circles, Divisions and Sub-

Divisions of the OSEB shall be granted two advance

increments in the time-scale of pay attached to the

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post on their becoming graduates while in service.

Accordingly, an office order was passed by the

Secretary of the OSEB on 17.06.1970 and LDCs of the

OSEB would be granted two advance increments on

their becoming graduates while in service. On

03.10.1970, a Tripartite Settlement was entered into

by the OSEB with the Employees Unions regarding

revision of wages of the employees of the OSEB and on

30.06.1971 an office order was issued by the Secretary

of the OSEB giving the details of the revised scales of

pay, dearness allowance and house rent allowance

admissible to the employees of the OSEB as on

01.04.1969. Thereafter in terms of settlement dated

03.10.1970, the OSEB constituted an Anomaly

Committee which was to examine inter alia the issue

with regard to advance increments in the revised

scales of pay for employees who became graduates

while in service. The Anomaly Committee

recommended inter alia that two advance increments

which were given to LDCs working in the different

Circles, Divisions and Sub-Divisions of the OSEB in

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the Pre-revised scale of Rs.80-135 may be given such

advance increments in the revised scale of pay when

the employees become graduates or pass Accounts

Examinations on or before 30.06.1971 and such

advance increments may not be given to those

employees who become graduates or pass Accounts

Examinations subsequent to 30.06.1971. The

recommendations of the Anomaly Committee were

considered by the OSEB in its meeting held on

12.05.1973 and the OSEB accepted the

recommendations of the Anomaly Committee saying

that the employees, who graduated or passed Accounts

Examinations on or before 30.06.1971, would be

eligible for such two advance increments. The decision

of the OSEB was followed by a Circular dated

16.07.1973 clearly saying that the benefit of advance

increments shall be allowed in the revised pay-scale to

the employees who have graduated or have passed the

Accounts Examinations on or before 30.06.1971. The

respondent Nos.1 to 5, who have been working as

LDCs under the OSEB, passed the graduate

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examinations in the years 1974, 1975 and 1976 and

were not granted two advance increments by the

OSEB.

4. Aggrieved, the respondent Nos.1 to 5 filed a writ

petition before the Orissa High Court being OJC

No.1428 of 1979 and the writ petition was disposed of

by the High Court with a direction to the OSEB to

dispose of the representations of the respondent Nos. 1

to 5. Pursuant to the direction of the High Court, the

OSEB rejected the representations. Thereafter,

respondent Nos.1 to 5 filed another writ petition being

OJC No.2237 of 1981 claiming two advance

increments. The OSEB in its counter-affidavit filed

before the High Court stated that the earlier

notification of 1970 under which two advance

increments were given to employees of the OSEB who

graduated while in service had been withdrawn. The

High Court in its order dated 12.04.1989 held that

since the basis of the relief claimed by respondent Nos.

1 to 5 was the notification of 1970 which had been

withdrawn, the High Court cannot grant any relief to

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the respondent Nos. 1 to 5 but reserved liberty to the

said respondents to challenge the legality of the

decision of the OSEB taken in its meeting held on

12.05.1973 confining the benefit of advance

increments to those employees who had become

graduates or passed Accounts Examinations on or

before 30.06.1971. The respondent Nos. 1 to 5 filed a

fresh writ petition being OJC No.5768 of 1994 praying

for quashing the decision of the OSEB in 1973 and the

office order dated 16.07.1973 confining the benefit of

advance increments in the revised scales of pay to the

employees who graduated or had passed the Accounts

Examinations on or before 30.06.1971.

5. The High Court allowed the writ petition being OJC

No.5768 of 1994 by the impugned order dated

18.12.2007. In the impugned order, the High Court

observed that respondent Nos. 1 to 5 will get the

benefit of only Rs.6/- in their monthly pay. The High

Court held that other employees similarly placed like

the respondent Nos.1 to 5 had been given the benefit

and there should not have been any discrimination

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and they should not have been denied the same benefit

of two advance increments. The High Court also held

that the proceedings of the meeting of the OSEB held

on 12.05.1973 in which the decision to grant two

advance increments to the employees who had

graduated or had passed the Accounts Examinations

on or before 30.06.1971 did not disclose any reason,

far less any justifiable reason, to confine the benefit of

the two advance increments only to the employees

fulfilling the criteria by a cut-off date and hence the

decision of the OSEB was arbitrary. The High Court

accordingly quashed the decision of the OSEB taken

on 12.05.1973 so far as respondent Nos. 1 to 5 were

concerned and directed that two advance increments

be notionally given to respondent Nos. 1 to 5 in their

Pre-revised scale of pay with effect from the respective

dates they acquired the degree qualifications in the

year 1974-1976 and on that basis fix their current pay

and pay their current salary accordingly. The High

Court, however, observed that the impugned order will

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be confined to only respondent Nos. 1 to 5 and shall

not be a precedent for others.

6. We have heard learned counsel for the parties and we

find that in the proceedings of the meeting of the

OSEB held on 12.05.1973, it is stated that the Wage

Board Award recommending revised scales of pay was

not clear if the advance increments were to continue

and the Anomaly Committee after considering the

matter had recommended that the benefit of advance

increments should be given to employees who

graduated or passed the Accounts Examinations on or

before 30.06.1971 and that those who have passed the

concerned examinations after this date shall not be

eligible for this benefit. In the proceedings of the

meeting of the OSEB held on 12.05.1973 it was also

made clear that the OSEB accepted the

recommendations of the Anomaly Committee not to

allow advance increments in the case of employees

who had obtained the degree or passed the Accounts

Examinations subsequent to 30.06.1971. If

respondent Nos. 1 to 5 desired to challenge this

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decision of the OSEB as arbitrary and discriminatory,

they should have placed sufficient materials before the

court to demonstrate that the cut-off date of

30.06.1971 adopted by the OSEB was arbitrary and

discriminatory and that the decision of the OSEB was

violative of Article 14 of the Constitution. In the

impugned order, the High Court has not referred to

any such materials and has instead held that the

proceedings of the meeting of the OSEB did not

disclose any reason, far less any justifiable reason, to

confine the benefit of two advance increments to

employees who graduated or passed the Accounts

Examinations on or before 30.06.1971.

7. We are of the considered opinion that the view taken

by the High Court that in the absence of any reason

given by the decision of the OSEB in its meeting held

on 12.05.1973 to fix the cut-off date of 30.06.1971 for

becoming a graduate or passing the Accounts

Examinations for an employee to be entitled to the two

advance increments, its decision was arbitrary and

discriminatory is not sustainable in law. The OSEB as

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the employer was fully with its powers to decide the

cut-off date for the employee to become a graduate or

passing the Accounts Examinations to be eligible to

the two advance increments in the revised scales of

pay and the decision of the OSEB could not be held to

be arbitrary only because the reason for decision was

not stated in the proceedings of the meeting of the

OSEB in which the decision was taken. This Court in

State of Bihar and Others vs. Ramjee Prasad and

Others [(1990) 3 SCC 368] held:

"the choice of date cannot be dubbed as arbitrary

even if no particular reason is forthcoming for the

same unless it is shown to be capricious or

whimsical or wide off the reasonable mark".

8. In a recent case in National Council for Teacher

Education and Others vs. Shri Shyam Shiksha Prashikshan

Sansthan and Others [(2011) 3 SCC 238] this Court after

referring to various earlier authorities on the point in

Sushma Sharma (Dr.) vs. State of Rajasthan [1985 supp.

SCC 45], UGC vs. Sadhana Chaudhary [(1996) 10 SCC 536],

Ramrao vs. All India Backward Class Bank Employees

Welfare Association [(2004) 2 SCC 76] and State of Punjab

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vs. Amar Nath Goyal [(2005) 6 SCC 754] has reiterated this

position of law and has held the cut-off dates specified in

clauses (4) and (5) of Regulation 5 of the National Council

for Teacher Education (Recognition Norms and Procedure)

Regulations, 2007 to be valid.

9. We, therefore, allow this appeal and set aside the

impugned order of the Division Bench of the High Court

and dismiss the writ petition of respondent Nos. 1 to 5.

There shall be no order as to costs.

.............................J.

(R. V. Raveendran)

.............................J.

(A. K. Patnaik)

New Delhi,

August 11, 2011.