R.K. Patra, J.
1. Being dissatisfied with the order dated 19.5.1999 (Annexure-1) passed by the Orissa Administrative Tribunal, Bhubaneswar in Original Application No. 2168 of 1996 (Original Application No. 2733(C) of 1993) denying financial benefit to the petitioner in the cadre of O.A.S. (super-time scale) and O.A.S. (senior grade in super-time scale), he has filed this writ petition.
2. Facts leading to filing of aforesaid Original Application No. 2168 of 1996 are necessary to be briefly stated :
Petitioner was a Senior Officer of the Orissa Administrative Service (O.A.S.). He had filed writ petition bearing O.J.C. No. 2314 of 1982 in this Court for expunction of adverse remarks in his C.C.R. for the periods from 25.11.1977 to 31.7.1978 and 198 1-1982. He had also filed another writ petition bearing OJC No. 829 of 1984 challenging his premature retirement with effect from 15.7.1983. Consequent upon the constitution of the Orissa Administrative Tribunal, those writ petitions were transferred to it which were re-numbered as T.A. No. 75 of 1986 and T.A. No. 81 of 1986. By order dated 14.7. 1988 both the T.As. were dismissed. The petitioner, thereafter filed Special Leave Petitions in the Supreme Court bearing S.L.P. No. 13109-10 of 1988 (later converted to Civil Appeal Nos.581 and 582 of 199 1). By order dated 5.2.1991 the Supreme Court set aside the order of compulsory retirement as well as the order dated 14.7.1988 of the Tribunal. For the sake of convenience, the entire order of the Supreme Court is extracted hereunder :
'Leave granted.
After hearing counsel for the parties and having regard to the facts and circumstances of the case, we set aside the order of the compulsory retirement dated 16.7.1983 as well as the order of the Tribunal dated 14.7.1988. We further direct that the appellant will be . paid 50% of his salary and other emoluments, which were payable to him for the period 16.7.83 to 30.1 1.89. As regards the appellant's pension and other retiral benefits are concerned, the same will be calculated treating the appellant to have retired from service w.e.f. 30.11.89, the date on which he attained the age of superannuation. However, if any amount has been paid to the appellant towards the pensionary benefits during this period, the same shall be adjusted.'
In obedience to the direction of the Supreme Court, the Government expunged petitioner's adverse remarks recorded in his C.C.R. for the periods mentioned above. He was also reinstated in service with retrospective effect from 16.7.1983 and allowed to retire from service with effect from 30.11.1989 i.e. the date of his superannuation by G.A. Department notification No. 10441/Gen dated 16.4.199 1. Alleging that the State Government has not fully complied with the Court's order, the petitioner filed contempt petition Nos.3 and 4 of 1993 in the Supreme Court. After considering the cause, the Supreme Court passed the following order on 27.9.1993 which is quoted hereunder :
'Since according to the counter filed by the respondents, the order of this Court: dtd. 5.2.91 has been complied with, there is no contempt committed by the respondents. However, if there are any claim which are not covered by order dtd. 5.2.91 the petitioner is free to pursue them. The contempt petitions are disposed of accordingly.'
The above order gave rise to filing of the Original Application No. 2168 of 1996 before the Tribunal. The Tribunal in its order dated 19.5.1999 allowed the application in part with the following direction :
' .... For these reasons, we direct that the respondent- 1 shall convene a special departmental promotion Committee within one month from the date of receipt of the copy of the order for consideration of the case of the applicant for promotion with retrospective effect from the date when his immediate junior was promoted. If promoted within the cadre, and if he would be found suitable, he shall be given promotion and his pay shall be notionally fixed, adding the annual increments which fall due and revisions of pay due so as to arrive at the pay, he would have drawn at. the time of his retirement. On that basis, his pension and pensionary benefits shall be recalculated and necessary payment orders issued within 4 months from the date of receipt of this order.'
'Pursuant to the direction contained in the above order of the Tribunal, the Government in General Administration Department office order No. 14786/Gen. dated 18.4.2000 (Annexure-3) promoted the petitioner 'notionally' to the O.A.S. (super-time scale) with effect from 26.10.1984 retrospectively. His inter se seniority in O.A.S. (super-time scale) was fixed below Rai Charan Das and above Narottam Sahoo. In the same office order the petitioner was also 'notionally' promoted to the O.A.S. (Senior Grade super-time scale) with effect from 22.10.1988 retrospectively and his inter se seniority in O.A.S) (Senior Grade in super-time scale) was fixed below Rai Charan Das and above one K.C. Mohapatra. His pay was fixed 'notionally' adding annual increments which fell due from the date of premature retirement i.e. from 16.7.1988 till his normal date of retirement i.e. 30.1 1.1989.
3. In course of hearing of this writ petition this Court was prima facie of the view that the decision of the Tribunal dated 19.5.1999 and the office order dated 18.4.2000 were not correct and accordingly the learned Additional Government Advocate asked for time for re-examination at the government level. We, accordingly, adjourned the matter to 18.6.2002. On that day, learned Additional Government Advocate placed before us revised office orders No. 15503/Gen. dated 25.5.2002 and No. 15500/Gen. dated 15.5.2002 of the General Administration department. In view of the aforesaid two fresh orders, we required the Government to file further additional affidavit indicating the whole position. In obedience to the said direction, B.K. Nayak, Joint Secretary to the Government in General Administration Department has filed further affidavit on 27.6.2002 by enclosing the aforesaid two office orders No. 15503/Gen. and 15500/Gen. dated 15.5.2002 as Annexures-A/2 and B/2 respectively.
4. On consideration of the submissions of the counsel for parties and on perusal of the order of the Supreme Court mentioned above, the following facts clearly emerge :
(i) The adverse entries of the petitioner having been expunged, the Tribunal in the impugned order has rightly directed to the State Government to consider the case of the petitioner for promotion with retrospective effect when his immediate junior was promoted. But at the same time, the Tribunal clearly erred in law in observing that 'if promoted, his pay should be 'notionally' fixed'. Question of fixing of pay of the petitioner in the promoted post 'notionally' does not arise. The order of compulsory retirement dated 16.7.1983 having been set aside, the petitioner shall be deemed to be in service till 30. 11. 1989. his normal date of superannuation. In other words, the petitioner has to be placed in the same position as if there was no proceeding against him and he was wrongfully prevented from doing his duties. The petitioner cannot be deprived of his legitimate remuneration which he could earn as he was never lawfully retired from service.
(ii) From the office order No. 15503/Gen. dated 15.5.2003 it appears that the petitioner was promoted to O.A.S. (super- time scale) with effect from 26. 10. 1984 retrospectively and to O.A.S. (Senior Grade in super-time scale) with effect from 22.10.1988 retrospectively.
For the above reasons, his pay therefore has to be actually fixed, but not 'notionally' till his normal date of retirement i.e. 30.11.1989. He would, however, be entitled to get only 50% of the arrear financial benefit in view of the direction of the Supreme Court in Civil Appeal Nos. 581 and 582 of 1991. We order accordingly.
5. In the result, the order of the Tribunal directing the State Government to fix the pay of the petitioner in the promotional post 'notionally' is hereby quashed. His pay in the promotional cadre should be actually fixed without depriving him his legitimate remuneration. Necessary order in this regard may be passed within one month of receipt of this order and the differential pay as stipulated in the order of the Supreme Court mentioned above may be paid within four months.
The writ petition is accordingly allowed. Records of the Tribunal may be sent back forthwith.
Pradip Mohanty, J.
6. I agree.