Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment

Judgment:

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
	)
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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L. Rath, J.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the Constitution of India the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
$content = array(
	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
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		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
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	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
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		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
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		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
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		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
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		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
)
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$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
	)
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$caseref = '(D.O. Sakara and Ors. v. Union of India<br>'
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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S.K. Mohanty, J.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
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I agree.

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	'title_for_layout' => 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '531448',
			'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
			'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
			'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
			'authreffered' => '',
			'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
			'caseanalysis' => null,
			'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
			'citingcases' => '',
			'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
			'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1994-04-22',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
			'judgement' => '<p style="text-align: justify;">L. Rath, J.</p><p style="text-align: justify;">1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p style="text-align: justify;">2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p style="text-align: justify;">3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p style="text-align: justify;">4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p style="text-align: justify;">'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p style="text-align: justify;">After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p style="text-align: justify;">As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p style="text-align: justify;">5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p style="text-align: justify;">'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p style="text-align: justify;">Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p style="text-align: justify;">(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p style="text-align: justify;">(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p style="text-align: justify;">(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p style="text-align: justify;">(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p style="text-align: justify;">The other provisions of the rule are not necessary for our purpose.</p><p style="text-align: justify;">6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p style="text-align: justify;">7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p style="text-align: justify;">8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p style="text-align: justify;">9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p style="text-align: justify;">'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p style="text-align: justify;">Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p style="text-align: justify;">10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p style="text-align: justify;">11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p style="text-align: justify;">S.K. Mohanty, J.</p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '78(1994)CLT665; 1994(II)OLR79',
			'ratiodecidendi' => '',
			'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
			'sub' => 'Constitution',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'bibhuti-bhusan-mohapatra-vs-represented-government',
	'args' => array(
		(int) 0 => '531448',
		(int) 1 => 'bibhuti-bhusan-mohapatra-vs-represented-government'
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$title_for_layout = 'Bibhuti Bhusan Mohapatra and ors Vs the State of Orissa Represented Through the Secretary to Government Home Department and ors - Citation 531448 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '531448',
		'acts' => '<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)',
		'appealno' => 'Original Jurisdiction Case No. 5780 of 1991',
		'appellant' => 'Bibhuti Bhusan Mohapatra and ors.',
		'authreffered' => '',
		'casename' => 'Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  1350-2975/-.The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it. After considering the functions, duties and responsibilities as well as staffing pattern, etc. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. At best an intimation was to be sent-to the Government in that regard. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986. 9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted. ), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line.',
		'caseanalysis' => null,
		'casesref' => '(D.O. Sakara and Ors. v. Union of India;',
		'citingcases' => '',
		'counselplain' => 'G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury',
		'counseldef' => 'Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and
H.S. Misra For Opp. party No. 3',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1994-04-22',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'L. Rath and ;S.K. Mohanty, JJ.',
		'judgement' => '<p>L. Rath, J.</p><p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.</p><p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.</p><p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)</p><p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :</p><p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.</p><p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'</p><p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.</p><p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :</p><p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :</p><p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :</p><p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:</p><p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;</p><p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and</p><p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.</p><p>The other provisions of the rule are not necessary for our purpose.</p><p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. </p><p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.</p><p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.</p><p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;</p><p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'</p><p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.</p><p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop </p><p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.</p><p>S.K. Mohanty, J.</p><p>I agree.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '78(1994)CLT665; 1994(II)OLR79',
		'ratiodecidendi' => '',
		'respondent' => 'The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.',
		'sub' => 'Constitution',
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		'circuit' => null
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	(int) 0 => '<p>L. Rath, J.',
	(int) 1 => '<p>1. The petitioners are Private Secretaries of the Judges of the Orissa High Court seeking the relief of retrospective operation of the Home Department's resolution of 27-7-1991 (Annexure-7) granting them the Class-lI gazetted status and the scale of pay of Rs. 1976-2975/- with effect from 1-1.1-1986 and some other reliefs. During the hearing of the case the claim was developed for retrospective grant of the scale of pay from 1-2-1985, the date from which the Private Secretaries of the Secretariat received the scale of pay. The facts placed by the petitioners for claiming the reliefs are that the Personal Assistants of the Judges of the Orissa High Court, which from the cadre from which promotion to the post of Private Secretary is made, were allowed relief of the scale of pay of Rs. 1365-2385 with effect from 1-11-1986 as per the Government's Setter dated 30-9-1989 in pursuance of the judgment of this Court reported in 68 (1989) CLT 760 (Narayan Sahoo v. State), Because of such grant of scale of pay the position became anomalous as the petitioners who were in higher rank . were made to receive at the initial stage the lower pay of Rs. 1350/- since the scale of pay applicable to the Private Secretaries than was Rs. 1350-2975/-. The petitioners made representation to the Hon'ble Acting Chief Justice on 21-12-1989 for removal of the anomaly and on 20-2-1990 vide Annexure-11 the Acting Chief Justice recommended to the Government for equalisation of the scale of pay of the Private Secretaries of the Judges of the Court with that of the Private Secretaries of the State Secretariat. In the letter the facts stressed were that the staff of the Court have always bean treated at par with that of the corresponding posts of the Stats . Secretariat, that the Private Secretaries in the State Secretariat were enjoying the scale of pay of Rs. 1975-2975/- in Class-II cadre which being not granted to the Private Secretaries departure had been made from the practice. Besides, the Privat Secre taries of the State Secretariat were enjoying Class II gazetted status whereas the Private Secretaries of the Court were enjoying only speciallv gazetted status The anomaly between the scales of pay of Personal Assistants an ' Private Secretaries of the Judges of the Court was also pointed out and the recommendation was made, after careful conside- ration by Hon'bie Acting Chief Justice, that the pay scale of the Private Secretaries should be equated with that of the Private Secretaries is the State Secretariat in the scale of pay of Rs. 1975 2975/- with Class-II gazetted status with effect from 1-11-1986. The recommendation went through in the Government the usual process of consideration at different levels and ultimately a memorandum dated 3-6-1991 was placed before the Cabinet for its decision. In the memorandum reference to which has been made in paragraphs 19 and 20 of the writ petition, without the averments having bean denied in the counter affidavit filed by the State, that the functions, duties and responsibilities as well as staffing pattern of the posts of all the Private Secretaries attached to the Judges of the Court are of similar nature as that of the Private Secretaries working in the Secretrariat. The Cabinet approved the memorandum on 26-6-1991. In pursuance of the memorandum the resolution in Annexure-7 was published on 27-7-1991 both conferring Class-ll gazetted status on and granting the higher scale of pay of Rs. 2200-3500/- to the Private Secre- taries of the Judges of the Court with direction that the resolution shall be effective from its date of issue. The petitioners impugn this resolu- tion, A further relief claimed is also the upgradation of the post of Private Secretaries to that of Senior Private Secretaries in the rank of Junior Class-I carresponding to such upgradation made in the Govern- ment on 19-3-1987 vide Annexure-2 in the scale of Rs. 1975-3300/- and upgradation of two posts in the cadre of Private Secretaries as Senior Class-I as had been made in the cadre of Private Secretaries of the Secretariat, in letters No. 17462 dated 19-3-1987 and No. 17460 dated 19-3-1987 in which one post of principal of Orissa Shorthand and Typewriting Institute, Bhubaneswar was created and the post of Suoerintendent of Stenographers, Personal Assistants and Private Secretaries Establishment, Home Department in the cadre of Private Secretaries was upgraded.',
	(int) 2 => '<p>2. The submissions urged by Mr. G. Rath, learned counsel appearing for the petitioners are that the Chief Justice having recommended the higher scale of pay to be allowed from 1-11-1986 so as to avoid the anomaly of the petitioners receiving lessar pay than their inferiors in service, and the memorandum placed before the Cabinet for aoproval having originated on the basis of the communication from the Chief Justice, it must be taken that the approval to the memorandum by the Cabinet was to grant the scale of pay with effect from the date recommended. Neither the memorandum nor the Cabinet approval having said that the scale of pay shall be effective from any different date than suggested by the Chief Justice, it has to be implicitly taken of the recommendation having been accepted and approved in its entirety. The next submission is that the Cabinet approval having been made on 26-6 1991, the mere fact that the resolution was published on 27-7-1991 could not make it prospective from that date as the publication of the resolution on that date and indeed the approval by the Cabinet on 26-6-1391 are fortuitous acts without any correlation with the subject-matter of consideration 27-7- 1991 as the cut-off date is both arbitrary and unreal and is a date taken out from the hat. It is thirdly contended that subjecting the petitioners to receive lesser scale of pay than their inferiors in service for the period 1-11-1986 till. 27-7-1 91 is arbitrary and discriminatory. Lastly it is argued that the pestitipners as holding comparative and equivalent posts to Private Secretaries in the Secretariat are entitled to the same scale of pay and other benefits as enjoyed by them from the same date as they received it.',
	(int) 3 => '<p>3. In reply the questions urged by the learned Additional Government Advocate are that under Article 229(2) of the <a>Constitution of India</a> the conditions of service of officers and servants of the High Court are to be regulated, until any law is made by the legislature of the State, by rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice in that behalf. Such rules, if they involve salary, allowances, leave or pension, are to be framed with prior approval of the Governor of the State. The Orissa High Court (Conditions of Service of Staff) Rules, 1963 (hereinafter referred to as 'the Rules') is the rules framed under Article 229(2) relating to conditions of service of the staff of the High Court including that of Private Secretaries and in the schedule to the Rules, the scale of pay of Private Secretaries earlier had been originally fixed much-lower which had been successively amended to incorporate higher scales of pay Hence until the Rules are again amended, the Private Secretaries of the Court are not entitled to any higher scale of pay. in support of the submission reliance is placed on earlier decisions of this Court in OJC Nos. 4162 of 1989 and 14. 75 and 1322 of 1990 (decided on 16-11 1992) (Kundal Lal Patnaik etc. v. State of Orissa and Ors.) and OJC No. 2975 of 1987 (decided on 28-1-1993) (Indramani Nayak v. State of Orissa and Ors.)',
	(int) 4 => '<p>4. That the Private Secretaries of the Court hold equivalent and comparative post as that of the Private Secretaries of the Secretariat of the State Government and that the two posts are counterparts of each other in the respective establishments is an. accepted fact as has been acknowledged in the memorandum of 3-6-1991 in these words :',
	(int) 5 => '<p>'The functions and duties attached to the posts of Private Secretaries of the Court are comparable in functions with that of the Private Secretaries of the Secretariat who are in the scale of pay Rs. 2200-3500/- with gazetted Class-II status.',
	(int) 6 => '<p>After considering the functions, duties and responsibilities as well as staffing pattern, etc. of the posts of Private Secretaries attached to the Judges of the High Court, it is felt necessary to confer gazetted Class-II status with the scale of pay Rs. 2200- 3500/- for the said posts. The General Administration Depart- ment and Finance Department have concurred in the proposal given by the Court in the matter.'',
	(int) 7 => '<p>As a matter of fact, the eligibility of the High Court employees to get the same scale of pay as is admissible to the corresponding rank in the State Secretariat is the acknowledged policy of the State Government since 1949 as was communicated by the Home Department D. O. No. 2828/A dated 16-2-1949 to the Registrar of the high Court. In the letter, white communicating that the Government has-not been able to accept in all cases the scales of pay suggested by Hon'bie the Chief Justice, it was stated that the Government had allowed the High Court employees the same scales of pay as are admissible to employees of corresponding ranks in the Secretariat which is the highest office in the province on the executive side. It is not known as to what were the scales suggested by Hon'oble the Chief Justice which was not possible for the Government to concede, yet it was ex facie made clear that the employees of the High Court are. entitled to the same scale of pay as are received by their counterparts in the Secretariat.',
	(int) 8 => '<p>5. Once the position is appreciated that the Private. Secretaries of the Hon'ble Judges of the Court are officers holding corresponding rank with the Private Secretaries of the Secretariat, much of the problem ' becomes easier in view of Rule 7(1) of the Rules. The Rule needs to be extracted :',
	(int) 9 => '<p>'7(1). In respect to such matters regarding the conditions of service of Court servants for which no provision or insuffi- cient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the State Government shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and orders, as the Chief Justice may, from time to time, specify :',
	(int) 10 => '<p>Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions, shall be made by the Chief Justice except with the approval of the Governor.' An analysis of the rule shows that :',
	(int) 11 => '<p>(a) where no provision or insufficient provision has been made in the Rules for the Court servants regarding their conditions of service:',
	(int) 12 => '<p>(b) their conditions of service shall be regulated by the rules and orders for the time being in force and applicable to State Government servants holding corresponding posts;',
	(int) 13 => '<p>(c) such rules and orders applicable to the corresponding Government servants shall however apply subject to such modifications, variations or exceptions, if any, of those as the Chief Justice may from time to time specify; and',
	(int) 14 => '<p>(d) the aforesaid modifications, variations or exceptions if relate to salaries, allowances, leave or pensions can be made by the Chief Justice only with the approval of the Governor.',
	(int) 15 => '<p>The other provisions of the rule are not necessary for our purpose.',
	(int) 16 => '<p>6. The analysis would show that wherever the Rules either are silent or are insufficient in respect of any matter relating to the conditions of service of an employee of the High Court, he is to be ipso facto , governed in respect of that aspect of the condition of service by the corresponding rules and orders that relate to the Government servants holding corresponding posts in the Government though however, if necessary, the Chief Justice may pass orders making modifications, variations or exceptions as may become necessary to suit the purpose. But if such modifications, etc. relate to salaries allowances, leave or pensions, they would need prior approval of the Governor. Hence where no modifications, etc. are made or are thought necessary, the rules and orders applicable to Government servants holding corresponding posts become automatically applicable to the corresponding employees of the High Court if the Rules are silent in that regard or have made insufficient provisions. Thus for ipso facto applicability of the rules and orders of the Government to the employees of the High Court, the condition precedent is that the Rules either make no provision or have insufficient provision in that regard. To put it in other words, if the Rules have made specific provisions or sufficient provisions in that matter, those provisions of the Rules would apply and take precedence over the corresponding rules applicable to Government servants holding corresponding posts. So far as the case of the Private Secretaries of the Court is concerned, it cannot be said that no provision has been made in the matter of their pay scale as the schedule to the Rules specifically shows the scale of pay attached to the post as Rs. 1350-2975/-. It is hence to be considered whether the prescription of such scale of pay for Private Secretaries is an insufficient provision made in the Rules An existing provision in the Rules may either be insufficient at its inception or may become insufficient due to subsequent developments. Any law, and hence subordinate legislation is included therein, is a dynamic concept intended to regulate existing as well as changing situations and where it is seen as no longer able to cope with the changed circumstances, it has to be invigorated with amendments to make it vibrate again. The process of legislation is never static and it is rather usual for a provision which is sufficient at one point of time to become insufficient at a later junction. Hence the words 'insufficient provision has been made' in Rule 7(1) would not restrict itself only to insufficiency or inadequacy arising on the date of promulgation of the Rules itself but would also take within its ambit the situation of the provision later on becoming insufficient or inadequate because of changed circumstances. The schedule to the Rules has itself been amended from time to time to revise the pay scales of the officers and it is rather seen that the Private Secretaries of the Court who were earlier known as Judgment Writers had been in receipt of higher scale of pay than the Private Secretaries in the Government. Before 1974 the Judgment Writers were in he scale of Rs 230-675/- whereas the Personal Assistants in the Secretariat were receiving the scale of pay of Rs. 230-500/-. There were then no Private Secretaries in the Secretariat. From 1-1-1974 the pay scale of the Judgment Writers became Rs. 525-1150/- whereas the scale of pay of the Private Secretaries in the Secretariat was Rs. 730-940/- and after rationalisation from 1-1-1981 the pay scale was Rs. 525- 1300/-for the Private Secretaries in the Court and for the Private Secretaries in the Secretariat Rs. 730-1050/-. Again from 1-1-1985 the two scales were respectively Rs. 1350-2975/- and Rs. 1600-2500/-. It is only on 1-2-1985 that the Government granted scale of pay of Rs. 1975-2975/-to the Private Secretaries in the Secretariat The scale of pay of the Private Secretaries of the Court was revised from 1-5-1989 to Rs. 2000-3500/ and of the Private Secretaries in the Secretariat to Rs. 2200-3500/-. The scale of pay of Rs. 2200-3500/- has been also granted to the Private Secretaries of the Court but only with effect from 27-7-1991 which is challenged in this case. Thus while the Private Secretaries of the Court had always enjoyed higher pay at the maximum slab than the Private Secretaries in the Secretariat, the discrimination was created only from 1-2-1985, under circumstances later on explained in the judgment, and thereafter from 1-3-1989 which has also since been equalised. Since they have been always holding corresponding posts, higher scale of pay being given to the Private Secretaries in the Secretariat rendered the provision in the schedule relating to the Private Secretaries of the Court insufficient. As the provisions of the Rule 7 (1) intend parity at all times with the holders of the corresponding posts in the Government, I am persuaded to hold that the pre-condition of the applicability of the provisions of Rule 7(1) is satisfied and that the petitioners became ipso facto entitled to the higher scale of pay of Rs. 1975-2970 / Rs. 2200-3500/-from the dates such scale of pay were allowed to the Private Secretaries in the Secre- tariat. For their such entitlement, no amendment to the Bute was necessary as the Rules itself contemplated such contingencies and made adequate provisions that without any amendment being carried out, the benefits would ipso facto become admissible and all that is necessary for the purpose was acknowledgement of the rights of the petitioners to the higher scale of pay. At best an intimation was to be sent-to the Government in that regard. Amendment of the Rules with prior approval of the Governor would have been necessary only if any modification, variation or exception would have been necessary, but that not being the case, it has to be held that the petitioners became entitled to the scales of pay of Rs. 1975-2975/- and Rs. 2200-3500/- respectively from 1-2-1985 and 1-5-1989. ',
	(int) 17 => '<p>7. Before I proceed further a clarification is necessary. The petitioners have moved for grant of higher scale of pay as also for Class-ll gazetted status besides upgradation of the posts of Junior class-I and Senior Class-I. Submissions have been advanced on both sides that as if conferment of Class-ll Gazetted status is an inevitable necessity for grant of the higher scala of pay of Rs. 2200-3500/-. No such provision has been brought to our notice and indeed the learned Additional Government Advocate has conceded that the two are not inter-connected. In the counter affidavit of the State it has been stated in paragraph 10 that the posts of Private Secretaries in the Secretariat. have been upgraded in the Home Department G.O. dated 19-3-1987 and the persons concerned have been given benefits with effect from a prospective date. In the same counter affidavit in paragraph 6 it has been stated that the pay scale of the Private Secretaries in the Secretariat was revised in the year 1983, to Rs. 730-1050/- as per the Orissa Revised Scales of Pay Rules, 1981 and again it was revised to Rs. 1600-2500/- from 1-1-1985 and subsequently to Rs. 1975-2975/-with effect from 1-2-1985. The petitioners have explained that pay scale of Rs. 1975- 2975/- of the Private Secretaries in the Secretariat was again revised from 1-5-1989 to Rs. 2200-3500/-, it being the Central equivalent pay scale. The averments in the counter affidavit show that the grant of Class-I gazetted status is unconnected with the grant of the higher scale of pay.',
	(int) 18 => '<p>8. While I come to such conclusions, yet the petitioners have claimed higher seals of pay of Rs. 1975-2975/- from 1-11-1986 as had been recommended by Hon'ble the Chief Justice Since no claim,has been advanced in the petition that they are entitled to the scale of pay from 1-2-1985 though such a claim has been advanced at the hearing stage, that relief to the petitioners has to be confined only from 1-11-1986.',
	(int) 19 => '<p>9. Since it is found that the Private Secretaries in the High Court became entitled to the higher scale of pay and status as that of the Private Secretaries in the Secretariat, on an interpretation of Rule 71) of the Rules, by ipso facto application of rules and orders applicable to the latter, it is not necessary to go into a detailed consideration of the submissions made on behalf of the petitioners regarding the true import of the Cabinet resolution and the 'validity of the cut-off date as 27-7- 1991. It has however to be observed that the submissions made in that regard of the petitioners have substantial force. As the file produced before us shows, the very initiation of it was made with the note that request of the High Court was to grant the scale of pay of Rs. 1975- 2975/- and Class II gazetted status to the Private Secretaries of the Court with effect from 1 11-1986. The anomalous situation which nece- ssitated'fhe request was also discussed. Thereafter there has been at various stages reference to the date 1-11-1986 as being the date from which the grant of , benefit was requested. The memorandum of 3 6- 1991 did not say that the request of the Hon'ble Chief Justice was in any way to be departed from or that any reasons were there to depart from it. The memorandum as such itself proceeded on the basis of the recommendation of Hon'ble the Chief Justice and that was what was approved by the Cabinet. It is hence logical to accept that the Cabinet approval was of the recommendation made by Hon'ble the Chief Justice. Attention of the Court has been rightly drawn to AIR 1974 SC 555 (E. P. Royappa v. State of Tamil Nadu and Anr.) in which in para 78 the Court held that it should be axiomatic that if the authenticated order does not correctly reflect the actual order made or the actual decision taken by the State Government, it must be open to correction and that the formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made, and override it. Even otherwise the recommendation made by Hon'ble the Chief Justice in respect of the conditions of service of staff of the High Court is not available to be lightly dealt with and is invari- ably to be accepted. The question was discussed by the Delhi High Court in C. W. No. 2812 of 1981, decided on 28-5-1982 (Sangram Singh and Anr. v. Union of India and Ors.) wherein it was observed ;',
	(int) 20 => '<p>'It should, in all propriety, have been accepted because Constitution gives to Chief Justice primacy in the matter of the staff of High Court. Even though approval of the Administration is required, correct convention and settled practice demand that barring exceptional circumstances which would be rarest of rare, the recommendations of the Chief Justice would be straightway accepted.'',
	(int) 21 => '<p>Even in our Court the position was reiterated in the very decision cited by the learned Additional Government Advocate, OJC No. 2975/87 {supra) wherein the Court following AIR 1971 SC 1850 (Gurumoorthy v. Accountant General, Assam and Nagaland), AIR 1976 SC 123 (State of Andhra Pradesh v. T. Gopalkrishnan Murthi) and AIR 1990 SC 334 (Supreme Court Employees Welfare Association v. Union of India and Ors.), observed that the recommendation of the Chief Justice of the High Court should be respected and approval should generally be granted, unless there is very good reason for not according approval. Grant of the scale and status to the petitioners from 27-7-1991 has also otherwise no rational basis. The date of publication of the resolution after the Cabinet approval could not itseif be a differentating base to defer the benefit. That way it would be possible to contend that if for some reason the actual resolution was deferred for a longer period, say for a year, yet it would be constitutional to allow the benefit one year after even though the Cabinet decision itself was taken a year back. Plainly, such a situation cannot be aceded to. It is for well-settled in law that my cut-off date must have an intelligible basis rationally connected with the event to which it supplies the dividing line. A date merely picked up at random is a stranger to the concept of equal protection of law. The principle was pointed out by the Supreme Court in AIR 1983 SC 130 (D.O. Sakara and Ors. v. Union of India) in paragraph 63.',
	(int) 22 => '<p>10. The decision in OJC No. 4162 of 1989 and OJC Nos. 14 75 and 1322 of 1990 (supra) and OJC No. 2975 of 1937 (supra) do not in any way run contrary to the view taken by ma. What the Co observed in the first case is that where provision has been made in T Rules itself with regard to conditions of service, the rules and orders applicable to Government servants holding corresponding posts in the State Government would not regulate the conditions of service of Court servants only because of the provision of Rule 7(1) was not considering the question as to whether such rules and d applicable to corresponding posts would remain applicable immutably even if they are rendered insufficient because of subsequent develop ',
	(int) 23 => '<p>11. In the result, the petition is allowed with costs and the petitioners are declared entitled to get the scale of pay of Rs. 1975. 2975/- with effect from 1-11-1986 and the scale of pay of Rs. 2200- 3500/- with effect from 1-5-1989 and for being declared Class-II gazetted with effect from the date the Private Secretaries in the Secretariat were so declared. A writ be issued accordingly. The arrear pay of the petitioners be calculated and paid by the opposite parties within three months from the date of receipt of the writ from the Court. Hearing fee is assessed at Rs. 500/-.',
	(int) 24 => '<p>S.K. Mohanty, J.',
	(int) 25 => '<p>I agree.<p>',
	(int) 26 => '<p>'
)
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Subject	Constitution
Court	Orissa High Court
Decided On	Apr-22-1994
Case Number	Original Jurisdiction Case No. 5780 of 1991
Judge	L. Rath and ;S.K. Mohanty, JJ.
Reported in	78(1994)CLT665; 1994(II)OLR79
Acts	Constitution of India - Articles 226 and 227; Orissa High Court (Conditions of Service of Staff) Rules, 1963 - Rule 7(1)
Appellant	Bibhuti Bhusan Mohapatra and ors.
Respondent	The State of Orissa, Represented Through the Secretary to Government, Home Department and ors.
Appellant Advocate	G. Rath, A.S. Naidu, P. Mohanty, A.K. Rath and S.P. Chowdhury
Respondent Advocate	Addl. Govt. Adv., ;D. Das, Adv. For Opp. party Nos. 1 and 2, ;P. Palit, D. Mohanta, B. Mohanty -1 and H.S. Misra For Opp. party No. 3
Disposition	Petition allowed
Cases Referred	(D.O. Sakara and Ors. v. Union of India

Bibhuti Bhusan Mohapatra and ors. Vs. the State of Orissa, Represented Through the Secretary to Government, Home Department and ors. - Court Judgment