Dr. B.R. Sarangi, J.—The petitioners, who are working as Special Public Prosecutors/Addl. Special Public Prosecutors/Assistant Public Prosecutors (Vigilance) in different courts in the State of Odisha have filed this application to quash the order dated 30.12.2014 issued by the Government of Orissa, Law Department revising the fees prospectively with effect from 21.10.2014 and not retrospectively with effect from 01.09.2012 as has been extended to other Public Prosecutors of the State pursuant to amendment made to the Orissa Law Officers Rules 1971 with effect from 01.09.2012 by virtue of Orissa Law Officers (Amendment) Rules 2012 vide notification dated 31.08.2012 under Annexure-1.
2. The factual matrix of the case in hand is that the petitioners are the Law Officers of the State of Orissa discharging their duties in the capacity of Special Public Prosecutors/Addl. Special Public Prosecutors/Assistant Public Prosecutors (Vigilance) in different courts assigned to them. Their engagements are regulated by the Orissa Law Officers Rules 1971 and the same was amended by virtue of Orissa Law Officers (Amendment) Rules 2012 notified on 31.08.2012 which came into force on 01.09.2012. The Government of Orissa made a revision of retainer fees and daily fees of the Government Pleaders, Public Prosecutors, Special Public Prosecutors whereas the petitioners, who have been engaged in different Vigilance Courts in the State have been deprived of getting the benefit of revised fees from that date. Therefore, they represented to the authority claiming the equal treatment with that of the Government Pleaders, Public Prosecutors and Special Public Prosecutors and also revision of fees with effect from 01.09.2012 pursuant to notification issued under annexure-1 dated 31.08.2012 by virtue of Orissa Law Officers (Amendment) Rules, 2012.
The representation so filed was duly forwarded to the Law Department on 03.04.2013. Since there was delay in consideration of such grievance, the petitioners filed another representation to the Director-cum-Additional D.G. Police (Vigilance) on 31.01.2014 with a request for taking necessary steps for enhancement of their fees w.e.f. 01.09.2012 at par with their counterparts Government Pleaders, Special Public Prosecutors, Public Prosecutors, Addl. Special Public Prosecutors etc. On consideration of the same, the Government of Orissa, Law Department by order dated 21.10.2014 vide Annexure-5 passed the order in concurrence with the Finance Department vide UOR No.126/GS-II dated 28.04.2014 to revise the fees of Special Public Prosecutors/Addl. Special Public Prosecutors/Asst. Public Prosecutors of Vigilance Department with prospective effect from 21.10.2014. Accordingly, the petitioners have been extended the revised fee structure with effect from 21.10.2014. The petitioners being aggrieved by the said order again made representation to the Director Vigilance-cum-special Secretary to Government G.A. (Vigilance) Department, Orissa objecting to the extention of revision of fees prospectively with effect from 21.10.2014.
It is stated that when the similarly situated persons have been extended the benefit from 01.09.2012, there is no valid and justifiable reason to extend the said benefit to the petitioners with effect from 21.10.2014. The Government of Orissa, Law Department passed the order on 30.12.2014 in Annexure-7 reiterating the facts that there is no justification to revise the fees of Special Public Prosecutors/Addl. Special Public Prosecutors/Asst. Public Prosecutors (vigilance) retrospectively as Finance Department has agreed for revision of fees with prospective effect. Hence this case.
3. Dr. A.K. Mohapatra, learned Senior Counsel appearing for the petitioners strenuously urged that in view of the definition of ''Public Prosecutor'' mentioned in Rule-3(a) of the Orissa Law Officers Rules, 1971 read with pre-amended Section-492 of Cr.P.C. 1898 now under the amended Section 24 of the Cr.P.C. 1973 if the benefit of revision of fees have been extended to the Government Pleaders/Public Prosecutors/Additional Special Public Prosecutors/Asst. Public Prosecutors with effect from 01.09.2012, there is no valid justifiable reason for not extending such benefit to the petitioners from the date the same has been extended to their counterparts i.e. from 01.09.2012. Admittedly, the Government has extended the benefits to the petitioners with effect from 21.10.2014. Vide Annexure-7 dated 30.12.2014 while considering the claim of the petitioners, the Government of Orissa, Law Department has not assigned any reason why the petitioners shall not be extended the benefits from the date their counterparts have been extended such benefit i.e.01.09.2012, but only indicated that Finance Department has agreed for revision of fees with prospective effect. Shri Mohapatra has contended that non-ascribing any reason for not extending the benefits retrospectively with effect from 01.09.2012 is violative of Article 14 and 16 of the Constitution of India. It is further urged that by such action of the authority equals have been treated as unequals which is not permissible under the law. To substantiate his contentions he has relied upon Dr. Ipsita Mishra & Ors v. state of Orissa & Ors., AIR 2010 Orissa 79 and Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi co-operative Housing Society Jaipur & Ors, AIR 2013 SC 1226.
4. Mr. B. Senapati, learned Additional Government Advocate relying upon the counter affidavit filed by opposite parties submitted that Special Public Prosecutors/Addl. Special Public Prosecutors of G.A. (Vigilance) Department are getting daily fees of Rs. 1,000/- whereas Public Prosecutors and Addl. Public Prosecutors are getting daily fees of Rs. 800/-. Therefore, the Special Public Prosecutors/Addl. Public Prosecutors/Asst. Public Prosecutors of G.A. (Vigilance) Department are standing on a higher pedestal than that of other Law Officers. It is further urged that the petitioners are covered under Section 24 of Cr.P.C. and the petitioners having received higher fees they cannot be equated with that of the Law Officers mentioned in Orissa Law Officers Rules 1971. Therefore, the order under Annexure-5 dated 21.10.2014 issued by the Government of Orissa, Law Department enhancing the Retainer Fees/Daily Fees of the petitioners with prospective effect pursuant to Annexure-7 dated 30.12.2014 is justified.
5. Mr. S. Das, learned counsel for the Vigilance Department submitted that the petitioners are discharging their duties and responsibilities assigned to them. Since the Special Public Prosecutors, Additional Special Public Prosecutors and Asst. Public Prosecutors under the Vigilance Department are the Law Officers of the State and their engagement is under the Orissa Law Officers Rules 1971, their claim for extension of benefits at par with their counterparts by way of revision has already been recommended by this Department to the Government for consideration.
6. On the basis of the facts pleaded above, it is to be considered
(i) whether the petitioners, who are discharging their duties as Special Public Prosecutors/Addl. Special Public Prosecutors/Public Prosecutors/Asst. Public Prosecutors of G.A. (Vigilance) Department can be treated at par with their counter parts with the State Government Public Prosecutors/Addl. Public Prosecutors/Special Public Prosecutors as defined under Section 24 of the Cr.P.C. read with provisions contained in Orissa Law Officers Rules 1971 and amended from time to time.
(ii) whether the revised fee structure applicable to the counterparts pursuant to Orissa Law Officers Amendment Rules 2012 giving effect from 01.09.2012 is admissible to them or not.
7. The Orissa Law Officers'' Amendment Rules 1971 under Rule-3(a) define "Public Prosecutor" to mean as follows:
"3(a). Public Prosecutor-"Public Prosecutor" means any person appointed under Sub-section (1) of Section 492 of the Code of Criminal Procedure, 1898 (Act 5 of 1898)".
The mentioned made about Sub-section-1 of Section 492 of Cr.P.C., 1898 after amendment of Cr.P.C. 1973, the same has been incorporated as Section-24 of the Act. Section 24 of Cr.P.C. 1973 reads as follows:
"24. Public Prosecutors-(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under subsection (4).
(6) Notwithstanding anything contained in Sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under Sub-section(4)".
8. Admittedly, the petitioners are Public Prosecutors/Addl. Public Prosecutors/Special Public Prosecutors/Asst. Public Prosecutors engaged by the Home Department of the Government of Orissa and their duties are assigned accordingly. To eradicate corruption, a special department was constituted which is known as Vigilance Department and the petitioners are being engaged for effective adjudication of the Vigilance cases instituted by the Government of Orissa. But, the fact remains that they are discharging their duties and responsibilities of the Special Public Prosecutors, Addl. Special Public Prosecutors, Asst. Public Prosecutors at par with their counterparts in the State Government who have been engaged to conduct the criminal cases before the various courts of the State. Once the nature of work is same and similar, save and except to expedite the vigilance cases and to cause immediate attention it cannot be said that their works are different from that of their counterparts engaged by the State Government. There is no dispute with regard to discharge of their duty at par with their counterparts in the State Government. Rather it is the admitted fact that they are "Public Prosecutors" within the meaning of Section-24 of the Cr.P.C. and are discharging the similar nature of duties. Hence this Court is of the considered view that the petitioners are "Public Prosecutors" within the meaning of Section 24 of Cr.P.C. 1973 read with Rule 3(a) of the Orissa Law Officers Rules 1971.
9. Coming to issue no.ii, it is the admitted fact that the State Government has framed a Rule called the Orissa Law Officers Rules 1971 which has undergone an amendment under the Orissa Law Officers (Amendment) Rules 2012 vide notification dated 31.08.2012 giving effect from 01.09.2012 vide Annexure-1. By virtue of such amendment the fee structure has been revised in respect of the Public Prosecutors/Addl. Public Prosecutors/Special Public Prosecutors/Asst. Public Prosecutors of the State who have been engaged in different districts. Though the petitioners are discharging the similar nature of work as their counterparts in the State Government, they have been discriminated for which they approached the State Authorities. In consideration of their grievance, the Government revised the fee structure of the petitioners with effect from 21.10.2014 prospectively vide Annexure-7 dated 30.12.2014 but not retrospectively with effect from 01.09.2012 from which date their counterparts have been extended the said benefit. Thereby the petitioners are aggrieved by such action of the authority on the ground that similarly situated persons having been extended the revision of fee structure with effect from 01.09.2012, there is no justifiable reason not to extend such benefit to them from the date their counterparts have been extended the benefit. Therefore, they made grievance before the State Authorities so that the benefit should be extended to them with effect from 01.09.2012 from the date their counterparts have been extended the benefit. The claim of the petitioners has been rejected vide Annexure-7 dated 30.12.2014 on the ground that there is no justification to revise the fees of Special Public Prosecutors/Addl. Special Public Prosecutors/Asst. Public Prosecutors (Vigilance) retrospectively as Finance Department has agreed for revision of fees with prospective effect.
It appears that Annexure-7 does not contain any reason save and except that the Finance Department has agreed for revision of fees with prospective effect but that itself cannot be considered as sufficient reason for not extending the benefit to the petitioners from 01.09.2012 as has been extended to the counterparts of the petitioners pursuant to amendment of Orissa Law Officers (Amendment) Rules, 2012 vide Annexure-1.
10. In State of Madhya Pradesh v. Municipal Corporation, Indore, AIR 1987 SC 1983 : 1987 Supp. SCC 748, the apex Court held that the Government cannot restrict the operation of statutory rules by issuing executive instruction. The executive instruction may supplement but not supplant the statutory rules. In Palghat Zilla Thandan Samudhaya Samrakshna Samiti v. State of Kerala, (1994) 1 SCC 359, the apex Court held that the Government order cannot have the effect of modifying any Statute. In State of Madhya Pradesh v. G.S. Dal Flour Mill, AIR 1991 SC 772, the apex Court further held that an executive instruction cannot go against the statutory provision so as to whittle down the effect of such provision.
11. In Subhash Ramkumar Bind v. State of Maharashtra, (2003) 1 SCC 506 : AIR 2003 SC 269, the apex Court held that the administrative instructions are not intended to supplement or supersede the Act or statutory Rules and cannot take away the right vested in a person governed by the Act. The notification of which statute requires to be issued has a statutory force and not otherwise.
12. On perusal of Annexure-7 dated 30.12.2014, it appears that no reason has been assigned why the petitioners shall not be extended the benefit at par with their counterparts with effect from 01.09.2012. It is only indicated that Finance Department has agreed for revision of fees with prospective effect. The reason is contrary to the amended provisions of the Orissa Law Officers (Amendment) Rules 2012. Since the petitioners are discharging their duties at par with their counterparts, they cannot be discriminated in any manner whatsoever.
13. In Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 and Video Electronics Pvt. Ltd v. State of Punjab, AIR 1990 SC 820, the apex Court held that discrimination means an unjust, an unfair action in favour of one and against another. It involves an element of intentional and purposeful differentiation and further an element of unfavourable bias; an unfair classification. Discrimination under Article 14 of the Constitution must be conscious and not accidental discrimination that arises from oversight which the State is ready to rectify.
14. The apex Court in Narmada Bachao Andolan (III) v. State of Madhya Pradesh, AIR 2011 SC 1989 has explained the phrase "discrimination" observing unequals cannot claim equality.
15. In Rajasthan State Industrial Development and Investment Corporation (supra), the apex Court has taken similar view while examining the scope of discrimination. This Court has also in Dr. Ipsita Mishra & Ors. (supra) held that equals cannot be treated as unequals.
Applying the said principles to the present case, it appears that the petitioners are discharging the similar nature of work like to their counterparts. The action of the State Government in not extending the revised fees to the petitioners at par with their counterparts with effect from 01.09.2012 amounts to ''discrimination'' and violative of Article 14 of the Constitution of India.
16. In Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221, the apex Court held that the order of Government should be construed keeping in view the purpose, substance as well as the object underlying the same, more with a view to promote the same rather than stifle it.
17. In Southern Agrifurane Industries Ltd v. Commercial Tax Officer and others, (2005) 2 SCC 575, the apex Court held that notification is to be incorporated taking into account the relevance of the background in which it was issued. Similarly, Collector of Customs (Preventive) v. Malwa Industries Ltd, (2009) 12 SCC 735, the apex Court held that a notification like any other provision of a Statute must be construed having regard to the purpose and object it seeks to achieve. For the aforementioned purpose, the statutory scheme in terms whereof such a notification has been issued should also be taken into consideration and it is a well settled principle of law that where literal meaning leads to an anomaly and absurdity, it should be avoided.
18. In State of Maharastra v. Vijay Vasantrao Deshpande, (1998) 7 SCC 81, the apex Court held that in case of lack of clarity administrative instruction/circulars/orders/letters should be interpreted by taking into consideration their object and intention of the government. But, Annexure-7 has not indicated such reasons thereby it has been issued contrary to the amended Rules 2012 in Annexure-1 thereby the purpose of the amended provisions has given go by so far as it relates to the petitioners are concerned.
19. The basis for non-extending the benefit to the petitioners from the date the same has been extended to their counterparts w.e.f. 01.09.2012 as has been indicated in the counter affidavit is that the petitioners have been paid the higher revised fees than that of their counterparts and therefore, they have been extended prospectively cannot be taken into consideration as the same is contrary to the provisions of law.
20. In Mohinder Singh Gill and another v. The chief Election Commissioner, New Delhi & others, AIR 1978 SC 851, the apex Court in paragraph-8 held as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at P.18)
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older".
21. Similar view has also been taken by the apex Court in Bhikhubhai Vithlabhai Patel and others v. State of Gujarat and another, (2008) 4 SCC 144.
22. Considering the law laid down by the apex Court as mentioned above, the reasons ascribed by way of counter affidavit for denying the benefits to the petitioners from the date such benefit has been extended to their counterparts cannot be supplemented if the order issued under Annexure-7 dated 30.12.2014 does not say so. The law is well settled as discussed above that Government Notifications, Circulars and administrative instructions or orders are issued to supplement the purpose of the Statute not to supplant the same. The order impugned does not indicate any reason why the revision of fees shall not be extended to the petitioners retrospectively. It is well settled principle of law as laid down by the apex Court that the order must be assigned with reasons and in absence of that the order under Annexure-7 dated 30.12.2014 cannot be sustained. More so, by issuing Annexure-7 the purpose of amended Orissa Law Officers Rules 2012 is frustrated so far as it relates to the petitioners.
23. Considering from all angles, this Court is of the considered view that Annexure-7 dated 30.12.2014 cannot sustain. Accordingly, the same is quashed. The petitioners are to be extended the revised fees at par with their counterparts from the date of amendment of Odisha Law Officers'' Rules, 2012 i.e. 01.09.2012 instead of 21.10.2014 pursuant to notification issued under Annexure-5 dated 21.10.2014. As such the benefit of differential pay for the period from 01.09.2012 to 20.10.2014 shall be extended to the petitioners after adjusting all the amount already paid at par with their counterparts in consonance with the Orissa Law Officers (Amendment) Rules 2012 as expeditiously as possible preferably within a period of four months from the date of communication of this judgment. Accordingly, the writ petition is allowed. No order to cost.
