Biswanath Mohanty Vs. State of Orissa and ors. - Court Judgment

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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Service',
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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'id' => '529221',
			'acts' => '',
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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'decidedon' => '2007-05-04',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'decidedon' => '2007-05-04',
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Service',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'biswanath-mohanty-vs-state-orissa-ors'
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$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 35
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Sanju Panda, J.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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			'respondent' => 'State of Orissa and ors.',
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		'appellant' => 'Biswanath Mohanty',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
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		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Service',
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		'circuit' => null
	)
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'appellant' => 'Biswanath Mohanty',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Service',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '529221',
	(int) 1 => 'biswanath-mohanty-vs-state-orissa-ors'
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$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 35
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2. Fact in brief is as follows;

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'id' => '529221',
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			'appellant' => 'Biswanath Mohanty',
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			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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			'respondent' => 'State of Orissa and ors.',
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		'appellant' => 'Biswanath Mohanty',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Service',
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		'circuit' => null
	)
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'id' => '529221',
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			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'decidedon' => '2007-05-04',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'appellant' => 'Biswanath Mohanty',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
		'ratiodecidendi' => '',
		'respondent' => 'State of Orissa and ors.',
		'sub' => 'Service',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
			'ratiodecidendi' => '',
			'respondent' => 'State of Orissa and ors.',
			'sub' => 'Service',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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	'Judgement' => array(
		'id' => '529221',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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		'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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		'respondent' => 'State of Orissa and ors.',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
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		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(a) the appointment to which the special pay is attached is not a tenure appointment, and

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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The Finance Department circular dated 26.10.1987 lays down the following;

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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ii. The period of deputation with deputation allowance, if any, shall not exceed six years.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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	'Judgement' => array(
		'id' => '529221',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
		'caseanalysis' => null,
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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iv. xxx xxx xxx xxx

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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vi. xxx xxx xxx xxx

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'counselplain' => '',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '104(2007)CLT1; 2007(1)OLR743',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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	'Judgement' => array(
		'id' => '529221',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
		'caseanalysis' => null,
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
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With such direction the writ application is disposed of. There will be no order as to costs.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
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			'decidedon' => '2007-05-04',
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			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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P.K. Tripathy, J.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
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9. I agree.

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	'title_for_layout' => 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '529221',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Biswanath Mohanty',
			'authreffered' => '',
			'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
			'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
			'caseanalysis' => null,
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2007-05-04',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
			'judgement' => '<p style="text-align: justify;">Sanju Panda, J.</p><p style="text-align: justify;">1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p style="text-align: justify;">2. Fact in brief is as follows;</p><p style="text-align: justify;">Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p style="text-align: justify;">3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p style="text-align: justify;">4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p style="text-align: justify;">5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p style="text-align: justify;">6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p style="text-align: justify;">228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p style="text-align: justify;">Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p style="text-align: justify;">If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p style="text-align: justify;">(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p style="text-align: justify;">NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p style="text-align: justify;">(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p style="text-align: justify;">(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p style="text-align: justify;">(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p style="text-align: justify;">(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p style="text-align: justify;">(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p style="text-align: justify;">Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p style="text-align: justify;">(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p style="text-align: justify;">(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p style="text-align: justify;">7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p style="text-align: justify;">3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p style="text-align: justify;">The Finance Department circular dated 26.10.1987 lays down the following;</p><p style="text-align: justify;">i. xxx xxx xxx xxx</p><p style="text-align: justify;">ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p style="text-align: justify;">iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p style="text-align: justify;">iv. xxx xxx xxx xxx</p><p style="text-align: justify;">v. xxx xxx xxx xxx</p><p style="text-align: justify;">vi. xxx xxx xxx xxx</p><p style="text-align: justify;">8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p style="text-align: justify;">With such direction the writ application is disposed of. There will be no order as to costs.</p><p style="text-align: justify;">P.K. Tripathy, J.</p><p style="text-align: justify;">9. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Biswanath Mohanty Vs State of Orissa and ors - Citation 529221 - Court Judgment | '
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Biswanath Mohanty',
		'authreffered' => '',
		'casename' => 'Biswanath Mohanty Vs. State of Orissa and ors.',
		'casenote' => 'Service - Remuneration - Fixation of - Petitioner was member of State finance service and deputed for one year in respondent no.3's department - On petitioner's representation, he was reverted back to his parent department - Till then terms and conditions of service of petitioner remained undecided so petitioner submitted representation to respondent no.3's authority for fixation of his service conditions and for payment of his arrears - They deliberately delayed matter and due to non-payment of remuneration, petitioner was losing financial benefits - Hence, present petition - Held, on perusal of record which reveals that petitioner was deputed to foreign service as per rules and he has accepted terms and conditions of deputation which specifically stated that 'during period of deputation petitioner will have option either to get to his pay fixed in deputation post under rules and orders of State Government or draw his grade pay in his pay scale plus deputation allowance - Considering clause 19 of joint agreement , circular and rules, it is held that petitioner is entitled to financial benefits as per terms and conditions of order sanctioning his deputation to foreign service which petitioner has accepted and after joining foreign service he has not opted to forgo terms and conditions of Government and accepted total new service under respondent's company where he was posted on deputation - In absence of any general or special order of Government deciding any special pay for petitioner, Government is not liable to pay anything more to petitioner - However, since respondent has not determined remuneration of petitioner as per Directors Meeting and agreement, it may take decision in accordance with law in respect of fixation of remuneration of petitioner as Managing Director of Company as stipulated in agreement within period of six months - With such direction writ application is disposed of - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. ' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987. 4. Opposite party Nos. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. 6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below: In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department.',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2007-05-04',
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		'favorof' => null,
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		'judge' => ' P.K. Tripathy and; Sanju Panda, JJ.',
		'judgement' => '<p>Sanju Panda, J.</p><p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.</p><p>2. Fact in brief is as follows;</p><p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. </p><p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.</p><p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.</p><p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.</p><p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:</p><p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.</p><p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.</p><p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.</p><p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.</p><p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.</p><p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.</p><p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.</p><p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;</p><p>(a) the appointment to which the special pay is attached is not a tenure appointment, and</p><p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.</p><p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.</p><p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.</p><p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.</p><p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;</p><p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. </p><p>The Finance Department circular dated 26.10.1987 lays down the following;</p><p>i. xxx xxx xxx xxx</p><p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.</p><p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.</p><p>iv. xxx xxx xxx xxx</p><p>v. xxx xxx xxx xxx</p><p>vi. xxx xxx xxx xxx</p><p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.</p><p>With such direction the writ application is disposed of. There will be no order as to costs.</p><p>P.K. Tripathy, J.</p><p>9. I agree.<p></p><p>',
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	(int) 1 => 'biswanath-mohanty-vs-state-orissa-ors'
)
$url = 'https://sooperkanoon.com/case/amp/529221/biswanath-mohanty-vs-state-orissa-ors'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>Sanju Panda, J.',
	(int) 1 => '<p>1. In the present writ application petitioner has prayed for determining the remuneration in accordance with Clause-19 of Joint Sector Agreement dated 01.09.1982 signed between Industrial Promotion and Investment Corporation of Orissa Limited (in short, 'IPICOL') and the Orissa Handloom Weavers Cooperative Society Limited (in short, 'OSHCSL') who are opposite party Nos. 3 and 4 in the present application.',
	(int) 2 => '<p>2. Fact in brief is as follows;',
	(int) 3 => '<p>Petitioner joined as a Member of Orissa Finance Service in the year 1964 after completing training of 14 months. In various capacities he served under the Finance Department. He was selected for one year course post graduate diploma in the year 1970 in Indian Institute of Foreign Trade, New Delhi with permission of the State Government. He joined and completed the course in 1970-1971. While continuing in service in 1982, petitioner was considered suitable by IPICOL for implementation of a garment export project in joint sector. Initially petitioner was deputed to Industries Department from Finance Department for one year vide Notification dated 18.5.1982. The Govt. of Orissa, Finance Department, sanctioned the deputation of the petitioner vide letter No. 8677(3)F dated 22.2.1986 with effect from 20th May, 1982 to IPICOL with condition that during the period of deputation petitioner had the option either to get his pay fixed in the deputation post under the rules and order of the State Government or draw his grade pay in the scale of Rs. 525-1300/ plus deputation allowance at the rate of 20% per annum of his grade pay subject to maximum of Rs. 250/-per month in the pre-revised scale and 10% of his grade pay subject to maximum of Rs. 250/- per month from the date he comes over to that scale. The said deputation order dated 22.2.1986 is Annexure-3. The Government of Orissa in Finance Department also accepted petitioner's appointment as Managing Director of a joint sector project vide Notification dated 6.6.1988 and petitioner was allowed to continue as the Managing Director after his promotion to OFS Class-1 (Junior Branch). Petitioner has further pleaded that he held that post of Managing Director in the above Company as required under Clause-3 of the deputation order vide Annexure-3 dated 22.2.1986. The company was registered as a public limited company on 29.11.1982 and pursuant to clause-19 of the joint sector agreement, petitioner was appointed as Managing Director of the Company and the Board of Directors authorized the Chairman to determine his remuneration and terms and conditions of service. Even though the determination of remuneration of the petitioner was in agenda of Board of Directors meeting of the company, several times it was deferred and not determined at any point of time for which petitioner requested to be relieved from his duty as Managing Director of the Company so as to return back to his parent post. The Board of Directors decided that petitioner be treated as an appointee by the Board from the open market and Chairman would fix his remuneration in terms and conditions of service after posting order issued to him by IPICOL and accordingly, the Chairman of the Company vide letter No. 1588 dated 17.10.1987 intimated the Chairman of IPICOL conveying the decision of the Board of Directors meeting with request to issue posting order in favour of the petitioner and on receipt of the said letter IPICOL issued an office order dated 27.11.1987 posting the petitioner to the company with effect from 21.05.1982 as an Officer on Special Duty with stipulation that the petitioner would draw his pay and allowances from IPICOL which will be reimbursed by IPITEX to IPICOL. Initially petitioner was deputed as Officer on Special Duty and subsequently became the Managing Director. On petitioner's representation for reversion to his parent department finally he was reverted back to his parent department in January, 1989. Till then terms and conditions of service of the petitioner remained undecided so petitioner submitted representation on 29.9.1992 to the Managing Director, IPICOL for fixation of his service conditions and for payment of his arrears. They deliberately delayed the matter and due to non-payment of remuneration by the IPICOL, the service book of the petitioner had not been made up-to-date and consequently petitioner was losing financial benefits. With such grievance petitioner has prayed for remuneration for the period of posting as Officer on Special Duty from 20.5.1982 to 24.12.1982 and from 20.12.1988 to 03.01.1989, the period petitioner waited for his posting in the Finance Department and prays to direct the IPICOL as per rules of the Government to pay his remuneration as the Managing Director of the Company @ Rs. 2,50,000/- per annum as an open market candidate. ',
	(int) 4 => '<p>3. Opposite party Nos. 1 and 2 have filed their counter affidavit traversing the pleadings of the petitioner and in their additional affidavit dated 11.8.2006 they have specifically averred that petitioner was an officer of OFS-II who was deputed to IPICOL on foreign service with terms and conditions as an Officer-on-Special Duty for a period of four years with effect from 20.5.1982 and he was governed under the rules regarding foreign service deputation of a Government servant under Orissa Service Code as well as Finance Department Circular issued from time to time as per the Finance Department Office Memorandum No. 52958/F, dated 26.10.1987. The period of deputation to a foreign body with deputation allowance shall not exceed six years. Only in special cases and that too on request of the foreign body, the term of deputation can only be extended for one year without deputation allowance and Government has initially sanctioned the deputation of the petitioner for a period of four years with effect from 20.5.1982 and he continued in foreign body upto 02.01.1989 without obtaining further extension beyond four years which expired on 19.05.1986. Further the maximum period of deputation with deputation allowance shall not exceed six years 'after completion of maximum period of deputation of six years the concerned Government servant shall revert to his service under Government. In case the foreign body requests the Government sufficiently in advance then the concerned authority after considering the request may allow extension of the period of deputation for another one year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department and in no case further extension beyond seven years shall be allowed.' As the petitioner overstayed in the foreign body without prior sanction and no request letter from the foreign body for extension of period of deputation was received and petitioner on promotion joined as Commercial Tax Officer, Ganjam Circle on 04.01.1989 after being relieved from foreign body from 02.01.1989 and petitioner's foreign service period was regularized by sanction of deputation for the period from 20.05.1986 to 04.01.1989 on the same terms and conditions which was originally sanctioned and this was done on the request by the petitioner himself and it was based only on the sanction accorded for the purpose of requisition of his foreign service period, hence petitioner's case was covered under Rules 212 and 230 of Orissa Service Code regarding foreign service deputation as well as Finance Department Circular issued dated 26.10.1987.',
	(int) 5 => '<p>4. Opposite party Nos. 3 and 4 filed their separate counter affidavits denying the petitioner's case. Their main contention is that the petitioner is a Government servant. The term of his deputation on foreign service are governed by Chapter-8 of the Orissa Service Code besides other provisions and they have also averred that the writ petition is not maintainable in absence of Sri Prem Paul Verma, the Orissa State Weavers' Cooperative Society Limited and the Orissa State Handloom Development Corporation Limited who were parties to the joint sector agreement vide Annexure-5 on which the petitioner bases his right. They have specifically pleaded that as per joint sector agreement dated 01.09.1982 (Annexure-5) executed amongst IPICOL, Orissa State Handloom Weavers' Cooperative Society Limited and Sri Prem Paul Verma, a private promoter, the Managing Director of the joint sector company, opposite party No. 4 namely IPITEX in consultation with opposite party No. 3, namely, IPICOL, would fix the remuneration of the Managing Director but no such remuneration of the Managing Director had been fixed and the petitioner wants to get his remuneration with retrospective effect which is contrary to the rules of the deputation. The Board of Directors of IPITEX had never fixed any remuneration for the Managing Director other than what the petitioner was to receive on the basis of his terms of deputation and he is not entitled to get the benefit and security of Government service as well as remuneration from private employment. Simultaneously opposite party No. 4, the IPITEX had already paid the salary and entitlements of the petitioner to IPICOL no sooner the amount was determined. Since the terms and conditions of the service of the petitioner was a known fact from the inception of his joining in the garment project, there was hardly any need of suo motu exercise by the company to fix his remuneration as the same is governed by the provision of Orissa Service Code. The Board of Directors in their meeting dated 7.7.1993 resolved that the terms and conditions of Sri Biswanath Mohanty (petitioner) be fixed by IPICOL with reference to his initial terms and deputation fixed as per letter No. 206/86 dated 22.2.1986 issued by the Finance Department, Government of Orissa and after it was determined, petitioner has received his all arrears from opposite party No. 4.',
	(int) 6 => '<p>5 From the above pleadings it is crystal clear that the remuneration petitioner has claimed for is governed under Rule 228 of the Orissa Service Code.',
	(int) 7 => '<p>6. For better appreciation, Rule 228(1) of the Orissa Service Code is quoted below:',
	(int) 8 => '<p>228. (1) A Government servant transferred to foreign service or on deputation to other Government may be allowed to elect either the pay of the new post of his basic pay in the parent department plus personal pay, if any, plus deputation allowance if so decided by Government by any general or special order. The deputation allowance shall ordinarily be at a rate of 20 per cent of his basic pay subject to a maximum of Rs. 250 per month.',
	(int) 9 => '<p>Provided that the basic pay plus the deputation allowance shall, at no time, exceed Rs. 2,500 per month.',
	(int) 10 => '<p>If the employee elects to draw pay in the scale of pay of the new post prescribed by the foreign employer or other Governments, his initial pay in the scale shall be fixed under the rules of the Government of Orissa. If the Minimum of the scale of pay of the deputation post is substantially higher than the emoluments admissible to the Government servants under the State Government, the authority competent to sanction deputation may invoke the provisions of Rule 86 where justified in order to restrict the pay of the officer suitably.',
	(int) 11 => '<p>(2) The deputation allowance admissible under the previous clause is subject to the further condition that the basic pay of the employee in his parent office from time to time plus the deputation allowance does not exceed the maximum of the scale of pay of the post held on deputation or where the post on deputation has fixed pay, that fixed pay. Where subsequently to deputation, this is not possible by virtue of the basic pay of an employee itself exceeding the maximum of the scale of pay of the post or the fixed pay of the post, the deputation of the employee should be restricted to a period of six months from the date on which his pay thus exceeds such maximum and the employee should be reverted to his parent department.',
	(int) 12 => '<p>NOTE- (a) Under this Clause, no deputation allowance will be admissible to an employee from the date of his basic pay either equals or exceeds the maximum of the scale of the post which he holds on deputation.',
	(int) 13 => '<p>(b) No employee whose basic pay at the time of his proposed deputation exceeds the maximum of the scale of pay of the new post shall be deputed to such a post.',
	(int) 14 => '<p>(3) The option once exercised shall be final except that on each occasion when such an employee receives pro forma promotion in his parent department or reverted to a lower grade in the parent department or is appointed to another grade in the new department, a fresh option shall be allowed to him.',
	(int) 15 => '<p>(4) 'Basic Pay' for the above purpose shall mean the pay drawn in the scale of pay of the substantive appointment held or the pay in the scale of pay of the officiating appointment if an employee would have continued to hold the officiating appointment indefinitely. Special pay drawn in an appointment shall be deemed as part of 'basic pay' only in the following circumstances;',
	(int) 16 => '<p>(a) the appointment to which the special pay is attached is not a tenure appointment, and',
	(int) 17 => '<p>(b) The special pay is in addition to a scale of pay, in lieu of sanction of a separate scale of pay for the post.',
	(int) 18 => '<p>Any other special pay drawn by an employee in the parent department will not be admissible in addition to the deputation allowance unless the State Government allows this benefit under special circumstances. Where this benefit is given, the deputation allowance may be suitably restricted by the authority sanctioning deputation, if considered necessary.',
	(int) 19 => '<p>(5) The provisions in the proceeding sub-rules apply where the transfer of a Government servant is in the public interest. If the transfer is not in the public interest, the Government servant will be entitled during the period of deputation, to pay in the scale of the post under the foreign employer or the borrowing Government, as the case may be, due under the operation of the normal rules and for this purpose, the rules applicable to the employees under the Government of Orissa shall apply.',
	(int) 20 => '<p>(6) Notwithstanding the provisions in the preceding clauses, the State Government may issue special order in respect of specific categories of employees or specific categories of posts.',
	(int) 21 => '<p>7. After going through the said rules and having perused the writ application and counter affidavit it reveals that petitioner was deputed to the foreign service as per the rules and he has accepted the terms and conditions of deputation as per Annexure-3 dated 22.2.1986 and Clause-3 of the said Annexure-3 specifically stated that 'during the period of deputation Shri Mohanty will have the option either to get to his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance. The clause-3 of Annexure-3 is set out here below;',
	(int) 22 => '<p>3. During the period Shri Mohanty will have the option either to get his pay fixed in the deputation post under the rules and orders of the State Government or draw his grade pay in the scale of Rs. 525-1300/- plus a deputation allowance @ 20% of his grade pay subject to a maximum of Rs. 250/- per month in the pre-revised scale and @ 10% of his grade pay subject to a maximum of Rs. 250/- per month in the Revised Scale of pay from the date he comes over to that scale. ',
	(int) 23 => '<p>The Finance Department circular dated 26.10.1987 lays down the following;',
	(int) 24 => '<p>i. xxx xxx xxx xxx',
	(int) 25 => '<p>ii. The period of deputation with deputation allowance, if any, shall not exceed six years.',
	(int) 26 => '<p>iii. After completion of the maximum period of deputation of six years, the concerned Government servant shall revert to his service under Government. In case the foreign body requests Government sufficiently in advance that the services of the concerned Government servant are badly necessary, the concerned appropriate authority after considering the request may allow extension of the period of deputation for another year beyond six years without deputation allowance with specific and prior concurrence of the Finance Department. In no case further extension beyond seven years shall be allowed. There the foreign body requests to avail of the services of the concerned deputationist beyond seven years and Government agree to spare his services, steps should be taken in appropriate time for permanent absorption of the concerned Government servant under foreign body subject to the condition that the concerned deputationist Government servant gives consent for permanent absorption. There the Government servant is not willing to be permanently absorbed, he should be allowed to revert to his service under Government on expiry of the term of his deputation.',
	(int) 27 => '<p>iv. xxx xxx xxx xxx',
	(int) 28 => '<p>v. xxx xxx xxx xxx',
	(int) 29 => '<p>vi. xxx xxx xxx xxx',
	(int) 30 => '<p>8. Considering the said clause, the circular and the rules, it is held that the petitioner is entitled to financial benefits as per the terms and conditions of the order sanctioning his deputation to foreign service which petitioner has accepted and after joining the foreign service he has not opted to forgo the terms and conditions of the Government and accepted total new service under the company where he was posted on deputation. In absence of any general or special order of Government deciding any special pay for the petitioner Government is not liable to pay anything more to the petitioner. However, since opposite party No. 4 has not determined the remuneration of the petitioner as per the Board of Directors Meeting and agreement, it may take a decision in accordance with law in respect of the fixation of the remuneration of the petitioner as Managing Director of the Company as stipulated in the agreement within a period of six months.',
	(int) 31 => '<p>With such direction the writ application is disposed of. There will be no order as to costs.',
	(int) 32 => '<p>P.K. Tripathy, J.',
	(int) 33 => '<p>9. I agree.<p>',
	(int) 34 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 35
$i = (int) 34
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