JUDGMENT
A.K. Samantaray, J.
1. The petitioner who is the General Secretary of the Orissa Municipal Employees Federation and a regular Class-Ill employee of the Cuttack Municipal Corporation has come with this petition under Articles 226 & 227 of the Constitution of India challenging inaction of the State government in the matter of implementation of the Orissa Revised Scale of Pay Rules, 1998 on the basis of 5th Pay Commission Report with effect from 1.1.1996 whereas the State Government has already implemented the same with effect from 1.1.1996 in respect of the employees of similar cadre in the State Government who are discharging duties and responsibilities of similar nature and has prayed for commanding the opposite parties to implement the Orissa Revised Scale of Pay Rules, 1998 with effect from 1.1.1996 on the basis of the 5th Pay Commission Report.
2. The factual foundation leading to filing of this writ petition may be stated briefly as follows :
The petitioner who is the General Secretary of the Orissa Municipal Employees Federation, a registered organization under the Indian Trade Union Act in respect of employees of all local bodies excepting persons in Class-II grade are its members and the petitioner as the General Secretary has been authorized to file this writ petition on behalf of all the employees claiming revised scale of pay as per Orissa Revised Scale of Pay Rules, 1998 given effect to with effect from 1.1.1996. The Orissa Revised Scale of Pay Rules, 1998 on the basis of 5th Pay Commission Report was implemented in respect of the employees of the State Government in the same cadre and in respect of other Corporations with effect from 1.1.1996. The non-implementation Of the revised scale of pay as per the 5th Pay Commission Report with effect from 1.1.1996 in respect of the employees of the local bodies runs contrary to the mandate of Rule 4(1) of Orissa Local Fund Service Rules, 1975 and violates Articles 9, 14, 16 & 21 of the Constitution of India and therefore, the resolutions implementing the revised scale of pay from 1.8.2002 instead of 1.1.1996 is contrary to law on the ground of discrimination and violation of the rules.
3. In view of Section 81 of the Orissa Municipal Act, which empowers the State Government to create Local Fund Service and to make rules to regulate the clarifications, methods of recruitment, conditions of service, pay and allowance, discipline and conduct of the officials and servants belonging to Local Fund Service, the petitioners are all employees as per the recruitment process of Local Fund Service under the Municipal Corporation and are brought into Local Fund Service are governed by the provisions of Orissa Local Fund Service Rules, 1975.
Rules-4 (1) of the Local Fund Service Rules, 1975 reads as follows :
Rule 4(1)- Employees of the service shall get the time-scale of pay and allowances as are admissible to employees of similar cadre under the Government who have duties and responsibilities of equal nature.
Rule 4(2)- Inter seseniority, transfer, promotion, and confirmation shall be confined to the particular cadre.
4. In view of the aforesaid rules, the employees of the Local Fund Service are to be treated at par with the employees of similar cadre in the State Government in respect of time-scale of pay, allowances, disciplinary action, recruitment, appointment and transfer etc.
5. Prior to coming into force of the Orissa Local Fund Service Rules, 1975 the State Government by Resolution No.23659 dated 13.9.1974 decides to rationalize and introduce uniformity in the scale of pay under Urban Local Bodies and by abolishing the gradation in various Local Urban Bodies directed the employees of such local bodies to be given benefit of revised scale of pay with effect from 1.1.1974. In fact, the petitioners and other similarly situated persons have been given the benefit of revised scale of pay from time to time and vide Resolution No. 10780/HUD dated 4.3.1983, the Orissa Revised Scale of Pay Rules, 1981 notified in Finance Department Notification No.27260/F dated 10.7.1981 has been made applicable to the petitioners by revising their scale of pay with effect from 1.1.1981. Similarly, in 1986 the Revised Scale of Pay was made applicable to the petitioners vide Resolution No.25848 dated 2.6.1986 and 1989 Revised Scale of Pay was also made applicable to the them vide Resolution dated 23.3.1993 with effect from 1.5.1989.
6. It is averred that from the above fact it is clear that all along the employees of the local bodies were getting the revised scale of pay as and when their counterparts of the State Government were admitted to the revised scale of pay. It is stated that now there is no justifiable reason for the opposite parties for not revising the scale of pay as per the Orissa Revised Scale of Pay Rules, 1998 on the basis of the 5th Pay Commission Report with effect from 1.1.1996 when the Government has already give the said benefit not only to the Government employees but also the employees of the Corporations, aided educational institutions and the work charge establishments. It is stated in the writ petition that despite representations and repeated approaches, 1998 Revised Scale of Pay was not given to the employees of the local bodies forcing them to go on strike and ultimately the Government requested the Federation to call off the strike and acceded to the demand of implementation of 5th Pay Commission recommendations and the State Government agreed to pay the salary as per the revised scale of pay, provided they could meet the additional liability out of their own resources. It is stated that from time to time the Federation has been assured regarding implementation of the revised scale of pay as recommended by the 5th Pay Commission looking into the resources. But the same has not been extended to the employees of the local bodies as yet, though the same has been extended to the employees of the Cuttack Development Authority, employees of the Bhubaneswar Development Authority, all other Corporations and Government Undertakings with effect from 1.1.1996.
7. Mr. G.A.R. Dora, learned senior counsel, appearing for the petitioners submitted before us that the stand of the Government in the Urban and Housing Development Department is that on principle as before the petitioners are entitled to the benefit of the revised scale of pay at par with their counterparts in the State Government and only due to huge financial liability which is involved in the implementation, the State Government has not been able to extend the benefit and the State Government has absolutely no objection if the financial burden involved in the implementation of the revised scale of pay as per 5th Pay Commission recommendations with effect from 1.1.1996 is totally borne by the respective local bodies. The learned Counsel appearing for the Cuttack Municipal Corporation (O.P. No.4) filed before us a resolution passed by the Establishment Standing Committee of the Cuttack Municipal Corporation dated 18.2.2006 and drew our attention to Resolution No.4 where it has been resolved unanimously that the regular employees of the Corporation would be paid as per the recommendations of the 5the Pay Commission with effect from 1.1.1996 at par with the State Government employees from the own funds of the Corporation and they would also be entitled to Dearness Allowance sanctioned by the State Government from time to time from the said Funds. It is also resolved that the proposal be sent to the State Government for its approval before implementation of the same.
8. Learned Counsel for the petitioner submitted that on the face of such a resolution passed unanimously to allow the benefit of 5th Pay Commission recommendations to the employees of the Cuttack Municipal Corporation with retrospective effect from 1.1.1996 from the Corporation Funds the State Government may have no objection as it is not going to be saddled with any financial burden on account of the same.
9. In a similar case in Bhabagrahi Pati and 134 others v. State of Orissa and Ors., reported in 2006 (I) OLR-357, this Court in paragraph 13 of the judgment held as follows ;
13. We see no reason as to why the members of the Local Fund Service posted under the Bhubaneswar Municipal Corporation may not be sanctioned the revised scale in accordance with Rule 4(1) of the Local Fund Service Rules 1975 when the Bhubaneswar Municipal Corporation is ready to bear financial burden on it.
In the said case, the Bhubaneswar Municipal Corporation had resolved unanimously to allow the benefit of 5th Pay Commission recommendations to its employees at par with the Government employees with effect from 1.1.1996 from the Corporation Funds.
10. In the case at hand, similarly, the Cuttack Municipal Corporation has unanimously resolved to extend the benefit of 5th Pay Commission recommendations to its regular employees retrospectively with effect from 1.1.1996 as per the resolution referred to above.
11. Considering the aforesaid facts and circumstances of the case, we allow the writ petition. A writ of mandamus be issued commanding the State Government to accord sanction/approval to the recommendation of the Cuttack Municipal Corporation to its regular employees under the Orissa Revised Scale of Pay Rules, 1998 on the basis of the 5th Pay Commission Report with effect from 1.1.1996 with condition that the Cuttack Municipal Corporation shall bear the financial burden which is to accrue on sanctioning the revised scale of pay. A notification to this effect be issued by the State Government (O.P. No. 1) within a period of two months from the date of receipt of the writ which will be communicated at the cost of the petitioner.
B.P. Das, J.
12. I agree.