Orissa High Court
State Of Odisha And Others vs Bikash Ranjan Dash And Another .... ... on 29 October, 2021
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.18749, 18751, 18914, 18916, 19361, 19368,
19370 of 2018, W.P.(C) Nos.2905 & 11878 of 2019
and W.P.(C) No.21606 of 2020.
In W.P.(C) No.18749 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Bikash Ranjan Dash and another .... Opposite Parties
Mr. Budhadev Routray, Senior Advocate
with Mr. S.B. Jena, Advocate
In W.P.(C) No.18751 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Harsha Bardhan Udgata and .... Opposite Parties
another
Mr. S.B. Jena, Advocate
In W.P.(C) No.18914 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Prasanna Kumar Sahoo and .... Opposite Parties
another
Mr. S.B. Jena, Advocate
In W.P.(C) No.18916 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Kedar Kumar Swain and another .... Opposite Parties
Mr. S.B. Jena, Advocate
and Mr. S.N. Patnaik, Advocate
W.P.(C) Nos. 18749 of 2018 and Batch Page 1 of 29
// 2 //
In W.P.(C) No.19361 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Arun Kumar Mishra and another .... Opposite Parties
Mr. S.B. Jena, Advocate
In W.P.(C) No.19368 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Satya Narayan Behura and another .... Opposite Parties
Mr. S.B. Jena, Advocate
In W.P.(C) No.19370 of 2018
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Lalitendu Jena and another .... Opposite Parties
Mr. S.B. Jena, Advocate
In W.P.(C) No.2905 of 2019
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Sarat Chandra Panda and another .... Opposite Parties
None
In W.P.(C) No.11878 of 2019
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Shiva Prasad Samal and another .... Opposite Parties
Mr. P.K. Mishra, Advocate
W.P.(C) Nos. 18749 of 2018 and Batch Page 2 of 29
// 3 //
In W.P.(C) No.21606 of 2020
State of Odisha and others .... Petitioners
Mr. M.S. Sahoo, Advocate
-versus-
Kamal Kumar Satapathy and .... Opposite Parties
another
Mr. S.K. Behera, Advocate
CORAM:
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
29.10.2021 Dr. S. Muralidhar, CJ.
1. These writ petitions arise out of a common set of facts and are accordingly being disposed of by this common judgment.
Introduction
2. The State of Odisha represented by the Petitioners in all these writ petitions, has challenged a common order dated 16th November 2017 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar (OAT) in O.A. Nos.2018, 2417, 2765 of 2016 and 700, 731, 761, 762 and 877 of 2017. By the impugned order, the OAT held that the Finance Department (FD) Office Memorandum (OM) dated 23rd February 2016 was not in consonance with the Revised Assured Career Progression Scheme (RACPS) which was introduced by a resolution dated 6th February 2013 of the FD, Government of Odisha. Consequently, the OAT quashed the consequential order dated 29th August 2016 whereby W.P.(C) Nos. 18749 of 2018 and Batch Page 3 of 29 // 4 // the financial upgradation sanctioned earlier to the Opposite Parties in each of these writ petitions stood withdrawn and it was directed that the excess payment made, if any, would be recovered or adjusted from the pensionary benefit of the employee concerned.
3. Initially, at the very first hearing of these writ petitions on 18th April 2019, this Court in a short common order expressed "complete agreement with the view taken by the learned Tribunal". Accordingly, the writ petitions were dismissed.
4. The Petitioners then filed Special Leave Petitions in the Supreme Court of India against the said order. By order dated 28th February 2020 in Civil Appeal No.1851 of 2020 (State of Odisha v. Sri Satya Narayan Behura) and batch, the Supreme Court of India set aside the said order of this Court and remanded the matters to this Court to decide the writ petitions afresh after considering the various contentions raised by the parties. In paragraph-8 of the said order, it was observed as under:
"8. Learned Counsel for the parties have relied on certain other circulars and clarifications given by the Finance Department of the Government of Orissa, which were not part of the record, either before the Tribunal or the High Court. Learned Counsel for the parties have submitted that since they are Government documents, the same can be taken on record. Learned Counsel for both the parties have also accepted the fact that the High Court has not given any reason for dismissing the Writ Petition and only quoted the paragraph7 of the Order of the Tribunal and dismissed the Writ Petition, without given any finding of its own."W.P.(C) Nos. 18749 of 2018 and Batch Page 4 of 29
// 5 //
5. Consequently, while allowing the appeals of the present Petitioners and remanding the matters to this Court, the Supreme Court granted liberty to the Petitioners herein to file additional affidavits in the writ petitions within four weeks from the date that the writ petitions before this Court stand revived and granted the Opposite Parties three weeks thereafter to file additional counter affidavits. Rejoinders could be filed within two weeks thereafter. This Court was asked to dispose of the writ petitions expeditiously.
6. Pursuant to the liberty granted by the Supreme Court, an additional affidavit dated 27th November 2020 has been filed by the Petitioners in one of the writ petitions i.e. W.P.(C) No.19368 of 2018. Another additional affidavit has been filed on behalf of Opposite Parties on 8th March 2021 in W.P.(C) No.18916 of 2018.
Background facts
7. In order to appreciate the background facts, this Court proposes to discuss the facts of the lead writ petition i.e. W.P.(C) No.18749 of 2018. Opposite Party No.1, who was the Applicant before the OAT in O.A. 731 of 2017, from which the said writ petition arises, was at the time of filing the said OA, serving as Divisional Forest Officer (DFO), Chilika Wild Life Division, Chilika, District- Khurda in the rank of Odisha Forest Service Group-A (Senior Branch) under the Forest and Environment Department (F & E Department). Initially, Opposite Party No.1 was selected by the Odisha Public Service Commission (OPSC) for appointment as W.P.(C) Nos. 18749 of 2018 and Batch Page 5 of 29 // 6 // Assistant Conservator of Forest (ACF) in the rank of Orissa Forest Service Class-II, which was the entry grade. After completion of the training course at the State Forest Service College in Assam, Opposite Party No.1 was appointed as ACF in OFS Class-II in the scale of pay of Rs.2000-60-2300-EB-75-3200-100-3500/-. He joined in the post of ACF on 6th November 1990 in the office of the DFO, Ghumsur North Division, Bhanjanagar.
8. In the post of ACF, the pay of Opposite Party No.1 was revised under the Orissa Revised Scale of Pay Rules, 1998 (ORSP Rules) in the scale of pay of Rs.6500/-200-10500/-. Upon completion of fifteen years of service, Opposite Party No.1 was allowed Time Bound Advancement (TBA) scale of pay of Rs.8000/-275-13500 under the ORSP Rules with effect from 10th November, 2005.
9. On introduction of the ORSP Rules 2008, the pay of Opposite Party No.1 was revised in Pay Band-2 of Rs.9,300-Rs.34,800 with grade pay of Rs.5,400/- and fixed at Rs.17440/- with Grade Pay of Rs.5,400/- with effect from 1st January, 2006.
10. According to Opposite Party No.1, the next promotional post for the ACF is OFS (Group-A) Service which carries the scale of pay of P.B.-3 of Rs.15,600/-39,100/- and Grade Pay of Rs.6600/. In between ACF (Group-B) and OFS (Group-A) there was no other intermediary post having different scale for promotion of ACF. So the promotional post of ACF was OFS (Group-A) service carrying the scale of pay of PB-3.
W.P.(C) Nos. 18749 of 2018 and Batch Page 6 of 29// 7 //
11. The Government in F & E Department by a resolution dated 13th October 2009 decided to accord Group-A (Junior Branch) status to the posts of ACF as a whole. The next below post was that of Forest Ranger. By restructuring the cadre, the Government took a decision to upgrade Forest Rangers to Group-B and therefore the post of ACF was upgraded to that of Group-A (Jr. Branch). As already noted ACF is an entry grade post with a scale of pay of Rs.8000-275-13500/- under the ORSP Rules of 1998. That scale of pay was not in existence upon introduction of ORSP Rules, 2008 since it was not mentioned in the pay scale provided under the 1st Schedule of the ORSP Rules, 2008. In order to get over the anomalous position, the posts of ACF were conferred with status of Group-A (Junior Branch) which is a Group-A entry grade post. The pay of Opposite Party No.1was again revised in the scale of pay provided under the 1st Schedule of the ORSP Rules, 2008 for entry Grade of Group-A service i.e. PB-3 (S-15A) of Rs.15600-39100/- with Grade pay of Rs.5400/- with effect from the date of the Resolution i.e.13th October, 2009. The contention of Opposite Party No.1 is that this was a mere upgradation and not a promotion.
12. By notification dated 5th June 2010, Opposite Party No.1 was promoted to the post of OFS Group-A (Senior Branch) carrying the scale of pay of PB-3 of Rs.15,600-39,100/- with G.P. of Rs.6,600/-. Upon such promotion to the rank of OFS Group-A (Senior Branch), Opposite Party No.1 was posted as Deputy Director, Similipal Tiger Reserve.
W.P.(C) Nos. 18749 of 2018 and Batch Page 7 of 29// 8 //
13. After the Central Government introduced a Modified Assured Career Progression Scheme (MACPS), the Government of Odisha in the FD issued resolution dated 6th February 2013 allowing the RACPS for the State Government employees. In terms of the said RACPS, there were to be three financial upgradations counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in the absence of promotion. In terms thereof an employee:
(a) on completion of 10 years of service in the entry grade, will be considered for first upgradation under the RACPS;
(b) on completion of 20 years of service and having got only one upgradation either by promotion or by RACPS, will be considered for the second upgradation;
(c) likewise on completion of 30 years of service and having got two upgradations either by RACPS or promotion or both will be considered for third upgradation under the RACPS.
14. The resolution dated 6th February 2013 further stipulated that the financial upgradation under the RACPS would be admissible up to the highest grade pay of Rs.7,600/- in the pay and PB-3 under the ORSP Rules, 2008 and shall be permissible with effect from 1st January 2013 in case of those employees, only after regulation of their pay under the ORSP Rules, 2008.
15. Under para-4 of the resolution dated 6th February 2013, it was stipulated that there will be a Screening Committee to decide the W.P.(C) Nos. 18749 of 2018 and Batch Page 8 of 29 // 9 // eligibility of persons for upgradation under RACPS. Under paragraph 13, it was provided that if a financial upgradation of the RACPS was not allowed due to certain departmental proceedings, the case of the concerned employee would be reviewed in the subsequent years. In the event of disciplinary/penal proceedings, the grant of benefit under the RACPS would be subject to the rules/guidelines governing normal promotion and would be governed under the provisions of OCS (CCA) Rules, 1962.
16. The case of Opposite Party No.1, as is the case of other similarly situated persons who are the Opposite Parties in the connected writ petitions, is that during his service he got only one promotion and had completed more than 20 years of service as on 1st January 2013 from the date of his entry into the government service and therefore he was eligible and entitled for the 2nd financial upgradation. According to Opposite Party No.1, pursuant to the FD resolution dated 6th February 2013 and its clarification issued on 20th January 2014, the F & E Department by an Office Order dated 19th October 2015 allowed Opposite Party No.1 the 2nd RACP i.e. 2nd financial upgradation with effect from 1st January 2013 upon completion of 20 years of service by raising his Grade pay to Rs.7,600/- in the Pay Band-3 i.e.Rs.15,600/- to 39,100/-.
17. While Opposite Party No.1 was continuing in the rank of Group-A (SB) in the scale pay of PB-3, the impugned order dated 29th August 2016 was passed by the F & E Department withdrawing the earlier order dated 19th October, 2015. The order discloses that W.P.(C) Nos. 18749 of 2018 and Batch Page 9 of 29 // 10 // the Screening Committee reviewed its previous decision and concluded that Opposite Party No.1 was not entitled to get the benefit of the RACPS in terms of the FD OM dated 23rd February 2016 and a resolution dated 13th October 2009 since Opposite Party No.1 had got promotion to the rank of Deputy C.F. within 20 years. For easy reference, OM dated 23rd February 2016 is reproduced as under:
" OFFICE MEMORANDUM Sub: Consideration of RACP in case of cadres who have undergone upgradation.
Government introduced Revised Assured Career Progression (RACP) Scheme in Finance Department Resolution No.3560/F, dated 06.02.2013. The Scheme provides for three financial upgradations in the cadre counted from the direct entry grade on completion of 10/20/30 years of service. It provides for the promotional post grade pay in case of cadres having the promotional hierarchy and next higher grade pay as per first schedule first schedule to ORSP Rules, 2008 with interpolations introduced subsequently, if any, for the isolated/ex-cadre posts. Consequent to the restructuring, there are cadres where the posts have been up-grade with higher scales of pay. References have been made to Finance Department whether the said upgradation is to be counted as a financial upgradation while extending the benefits under RACP Scheme.
It may be indicated here that, RACP Scheme envisages financial upgradation counted from the direct entry grade. Whenever, there is an upgradation, the financial factor is taken into account. This factor fulfills the spirit of RACP Scheme.
Therefore, in cadres where there have been upgradations, the said upgradations shall count as one W.P.(C) Nos. 18749 of 2018 and Batch Page 10 of 29 // 11 // financial upgradation in terms of benefits extended under the RACP Scheme."
18. A consequential order dated 29th August 2016 passed in the case of Opposite Party No.1 reads as under:
" Government of Odisha Forest & Environment Department OFFICE ORDER Dated, Bhubaneswar the 29th August, 2016 Whereas financial up gradation under RACP Scheme was sanction in favour of Sri Bikash Ranjan Dash, OFS Group-A (SB), DFO, Chilika (WL) Division raising his grade pay from Rs.6600/- to Rs.7600/- in the scale of pay of Rs.15,600-39,100/- in PB-3 vide this Department earlier Office Order No.18663/F&E dtd.19.10.2015.
And whereas the Screening Committee have reviewed their previous proceeding/decision on 27.07.2016 and have recommended that Sri Bikash Ranjan Dash, OFS Group-A (SB), DFO, Chilika (WL) Division is not entitled to get the benefits under RACPS in terms of FD Memorandum No.4554/F dtd. 23.02.2016 and Resolution No.16969/F & E dt.13.10.2009 as he has already availed two financial up gradation i.e. (i) Accorded Group-A (JB) status as per F&E Deptt. Resolution No.16969/F&E dt.13.10.2009 w.e.f. 13.10.2009 and (ii) promoted to the rank of Deputy Conservator of Forests within 20 years of his service.
As such the financial up gradation sanctioned earlier to Sri Bikash Ranjan Dash, OFS Group-A (SB), DFO is hereby withdrawn. Excess payment made, if any, will be recovered from him or will be adjusted from the pensionary benefit of the employee.
This order supersedes the previous Office Order No.18663/F&E dt.19.10.2015."
W.P.(C) Nos. 18749 of 2018 and Batch Page 11 of 29// 12 // Petitions before the OAT
19. Aggrieved by the withdrawal of the benefit, Opposite Party No.1 filed O.A. No.731 of 2017 in the OAT. An interim order was passed by the OAT on 12th May 2017 to the effect that no action pursuant to the impugned order dated 29th August 2016 would be taken against Opposite Party No.1. Other similar situated persons likewise filed petitions before the OAT in which similar interim orders were passed.
20. Although the present Petitioners did not file a counter affidavit in the said O.A., para-wise comments were filed. The case of the present Petitioners is that even though Opposite Party No.1 had completed more than 20 years of service as on 1st January 2013 from the date of entry into service, he had been granted the 2nd RACPS due to a wrong interpretation of the resolution dated 6th February 2013. This had to be clarified by the FD by its OM dated 23rd February 2016 in its capacity as a nodal Department which introduced the RACPS.
21. The OAT in the impugned order dated 16th November 2017 held that declaring ACF, which was an entry grade post, as Group-A (Junior Branch) with a higher scale of pay cannot be treated as a promotion. Further, Opposite Party No.1 had been promoted to the next higher post i.e. OFS Group-A (Senior Branch) prior to 1st January, 2013. So for all practical purposes, he had got only one promotion. Therefore, he was entitled for a 2nd RACPS after W.P.(C) Nos. 18749 of 2018 and Batch Page 12 of 29 // 13 // completion of 20 years of service. Consequently, it was held that the OM dated 23rd February 2016 of the FD on the basis of which the impugned order dated 29th August 2016 had been passed was not tenable as it was not in consonance with the resolution dated 6th February 2013 introducing the RACPS. Accordingly both the clarification by way of OM dated 23rd February 2016 and the consequential order dated 29th August 2016 were quashed.
22. This Court has heard the submissions of Mr. M.S. Sahoo, learned Additional Government Advocate (AGA) on behalf of the Petitioners; Mr. Budhadev Routray, learned Senior Advocate on behalf of Opposite Party No.1 in W.P.(C) No.18749 of 2018 and Mr. S.B. Jena, Mr. P.K. Mishra, and Mr. S.K. Behera, learned counsels for Opposite Party No.1 in the remaining writ petitions.
Submissions of the Petitioners State
23. The submissions of Mr. Sahoo, learned AGA could be summarized thus:
(i) The RACPS envisages financial upgradations from the direct entry grade. Whenever there is an upgradation, the financial factor is taken into account and this factor fulfils the spirit of the RACPS.
Therefore, in cadres where there have been upgradations, the said upgradations shall count as one financial upgradation in terms of benefits extended under the RACPS.
W.P.(C) Nos. 18749 of 2018 and Batch Page 13 of 29// 14 //
(ii) The contention of Opposite Party No.1 that the upgradation accorded on 13th October 2009 was not specifically for Opposite Party No.1 but an upgradation in general and also was not a benefit under the RACPS, was incorrect. The spirit of the RACPS by the resolution dated 6th February 2013 was that there should be three financial upgradations on completion of 10, 20 and 30 years in a single cadre in the absence of promotion.
(iii) The upgradation from Class-II to Class-I (JB) was a substantial upgradation. The ACP Scheme which was introduced under the ORSP Rules, 2008 did not envisage the financial upgradation due to upgradation of the post in the cadre. That kind of upgradation not only happened in the Forest Service Cadre but also in other cadres of the State of Government. To tackle with a new situation, the FD brought out the OM dated 23rd February, 2016. The FD had a right to bring out such clarification to tackle with an emergent situation and therefore this was consistent with the resolution dated 6th February 2013 and not contrary thereto.
(iv) Para 15 of the additional affidavit filed on behalf of the State Government states as under:
"15. That, the upgradation of any posts is as good as promotion with financial upgradation. Any Govt. employee whose post has been upgraded, he has availed the promotional post as well as financial upgradation. So, the quashing of the Office Memorandum dtd.23.02.2016 is not proper in the eye of law."W.P.(C) Nos. 18749 of 2018 and Batch Page 14 of 29
// 15 //
(iv) All the Opposite Parties had availed TBA scale as also the ACP in their service career before availing the RACPS. Consequently, availing the upgradation with financial benefit would put them in an unequal position vis-à-vis the other cadres who had availed the RACPS only.
(v) Reliance has been placed on the decisions in Union of India v. S.S. Ranade (1995) 4 SCC 462; State of Rajasthan v. Fateh Chand Soni (1996) 1 SCC 562; Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (2011) 9 SCC 510; Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research (2012) 12 SCC 666 and Secretary, Government (NCT of Delhi) v. Grade-I Dass Officers' Association (2014) 13 SCC 296.
(vi) The 1st TBA was allowed to Opposite Party No.1 on 10th November 2005 under the ORSP Rules, 1998. The second upgradation amounting to promotion was accorded on 13th October 2009 when Opposite Party No.1 was accorded Group-A (Jr. Branch) status to ACF. On 5th June 2010, third promotion by way of upgradation was accorded when Opposite Party No.1 was promoted to OFS Group-A (Senior Branch). Therefore, three benefits were given to him within 20 years of service whereas according to the RACPS, he would be entitled to only two such benefits. Therefore, the subsequent benefit given on 24th February 2015 raising the pay scale of Opposite Party No.1 was a mistake.
W.P.(C) Nos. 18749 of 2018 and Batch Page 15 of 29// 16 //
(vii) In any event, by an Office Order dated 24th February 2015 itself it was specified "DDO concerned may be instructed to obtain an undertaking from the employee while availing RACP benefits that the excess payments if any detected in future will be recovered from him or will be adjusted from the pensionary benefits of the employees." Therefore, the OM dated 23rd February 2016 was perfectly justified.
Submissions on behalf of Opposite Parties
24. Mr. Routray, learned Senior Advocate and other learned counsel appearing for Opposite Party No.1 in each of the petitions in this batch have submitted as under:
(i) The stand of the Petitioners-State is based on a misinterpretation of the provision of the RACPS. The status of Opposite Party No.1 was that of ACF. The next below post was that the Forest Ranger.
By restructuring the cadre, the Government took a decision to upgrade Forest Rangers to Group-B and therefore the post of ACF was upgraded to that of Group-A (Jr. Branch). However, the promotion avenue of Ranger to ACF and thereafter ACF to DFO remained unchanged. Even after the financial upgradation, the status of Opposite Party No.1 as ACF remained and the promotion avenue to the DFO also remained. Therefore, the upgradation notification issued on 13th October 2009 did not confer any promotional benefit or a promotional post to Opposite Party No.1.
W.P.(C) Nos. 18749 of 2018 and Batch Page 16 of 29// 17 //
(ii) This type of upgradation by such raise in the scale of pay without any promotion, cannot result in the benefit of RACPS by the resolution dated 6th February 2013 being denied. The spirit of the RACPS was the grant of financial upgradation "in lieu of promotion". It was an en masse upgradation where there was no application of promotion rules, eligibility or any legal impediment as a barrier for the next promotion and it was irrespective of the numbers of years of service rendered in the cadre of ACF. This was an upgradation simpliciter by virtue of the policy decision of the Government which could not be termed as a benefit in lieu of promotion or a regular promotion. Reliance is placed on the decision in Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (supra) to draw the distinction between upgradation and promotion as well as the different kinds of upgradation.
(iii) The decisions in S.S. Ranade (supra) and Secretary, Government (NCT of Delhi) v. Grade-I Dass Officers' Association (supra) are distinguishable on facts. On the other hand, reliance is placed on the decision of this Court in State of Odisha v. Bihari Lal Barik (decision dated 27th June 2017 in W.P.(C) No.2831 of 2016), which was upheld by the Supreme Court on 23rd August 2017 by dismissal of SLP (C) Diary No.20358 of 2017 (State of Odisha v. Bihari Lal Barik) to urge that an OM cannot "clarify" the RACPS resolution dated 6th February 2013 which is of a legislative character.
W.P.(C) Nos. 18749 of 2018 and Batch Page 17 of 29// 18 //
(iv) The ministerial cadres of the State Secretariat and the Junior Engineers (JEs) of the Water Resources Department were on the same footing as ACFs of the F & E Department. The Junior Assistant and Senior Assistant posts in the Secretariat were merged and the post of Assistant Section Officer (ASO) was introduced with Group-B status, carrying a scale of pay more than the Junior Assistant and on par with the scale of pay of Senior Assistant. Similarly, JEs in different engineering departments were upgraded to that of Assistant Engineers (AE) which is in fact a promotional post. All these employees were allowed to get a higher status through the financial upgradation, but were nevertheless granted the benefits of RACPS taking into account their initial date of entry. It is only the FD, which has adopted a different interpretation for the F&E Department.
(v) The benefits already granted prior to the bringing into force the RACPS in February 2013 cannot be withdrawn subsequently on an erroneous interpretation of the Resolution and by subjecting the F&E Department employees to hostile discrimination vis-à-vis the employees of other Departments of the Government which had been allowed the RACPS benefits irrespective of the merger policy with financial upgradation.
(vi) The benefits granted to the employees of TBA under the ORSP Rules, 1998 or the ACP granted under the ORSP Rules, 2008 cannot be conflated with the entitlements in terms of the RACPS. The objective of introducing the RACP Resolution dated 6th W.P.(C) Nos. 18749 of 2018 and Batch Page 18 of 29 // 19 // February 2013 as reflected in para-1 of the scheme attached to the Resolution is to overcome the situation created by the continuance of an employee for a long period in his entry grade in a single cadre "in absence of promotion". Therefore, the authorities are precluded from interpreting the RACPS Resolution by comparing its scope of applicability with some other service/financial benefit. The financial benefits granted in shape of TBA and ACP under the different pay revision rules are statutory in nature and do not constitute a bar for availing the benefit of RACPS.
Analysis and reasons
25. The above submissions have been considered. A careful perusal of the RACPS introduced by the resolution of the FD dated 6th February 2013 reveals that even while introducing the said RACPS, the Government considered the recommendations of the fitment committee and the prevalent system of granting TBA under the ORSP Rules, 1998 as well as the ACP under the ORSP Rules, 2008. The RACPS Resolution acknowledges in its preamble that the Central Government had introduced the MACPS. Therefore, something similar had to be introduced in the State Government. Therefore, the RACPS was being introduced as a Career Advancement Scheme. The purpose of granting of financial upgradations was the absence of a promotional avenue to an employee who has remained over a long period of time in the same cadre. There are as many as 18 paragraphs in the RACPS. The grant of earlier benefits was clearly not seen as bar to receipt of the W.P.(C) Nos. 18749 of 2018 and Batch Page 19 of 29 // 20 // benefit under the RACPS. For instance, in paragraph 18, it is clarified as under:
"Assured Career Progression (ACP) availed under ORSP Rules, 2008 shall not be taken into account while considering the RACPS in favour of an employee."
26. It cannot be said that the aspect of grant of financial upgradation as a result of restructuring of cadres was not known to the FD when it issued the above Resolution. A clarification was also issued on 20th January 2014 regarding the RACPS by the FD itself. It was made clear that the RACPS was prospective.
27. One of the key issues here is whether the restructuring that took place in 2009 as a result of which the post of ACF was accorded to Group-A (Jr. Branch) status in order to obviate the anomaly in the Forest Ranger's status vis-a-vis that of the ACF, can be considered to be financial upgradation that would result in denial of a further upgradation under the RACPS to the Opposite Parties?
28. To recall, the principal contention on behalf of the Opposite Parties is that they have in fact being granted only one regular promotion on completion of 20 years of service and that the above re-categorization of the post of ACF as OFS Group-A (Jr. Branch) cannot be considered to be a promotion. It is specifically contended that the upgradation on 13th October 2009, the above manner was a general upgradation and not specific to any particular ACF.
W.P.(C) Nos. 18749 of 2018 and Batch Page 20 of 29// 21 //
29. The legal position in regard to the distinction between an upgradation and promotion is well settled. In Union of India v. Pushpa Rani (2008) 9 SCC 24, the Supreme Court had examined the entire case law and explained the difference thus:
"In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word 'promotion' means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word 'promotion' has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post."
30. In Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (supra), the legal principles distinguishing a promotion and upgradation were summarized thus by the Supreme Court:
"29.On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to a higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both--that is, W.P.(C) Nos. 18749 of 2018 and Batch Page 21 of 29 // 22 // advancement to a higher position and advancement to a higher pay scale--are described by the common term "promotion", does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position.
In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion in its wider sense, that is, advancement to a higher pay scale.
(iv) Generally, up gradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation can also be restricted to a percentage of posts in a cadre with reference to seniority (instead of being made available to all employees in the category) and it will still be an upgradation simpliciter. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a W.P.(C) Nos. 18749 of 2018 and Batch Page 22 of 29 // 23 // promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter, there is no need to apply the rules of reservation. But where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation. It was submitted that in terms of sub-para (iii) and (iv), when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is a difference between the two. In case such change of post is available to everyone who satisfies the eligibility condition without undergoing any process of selection, it will be upgradation. While, if it is a result of some process which has element of selection, then it will be a promotion to the higher pay scale. Sub-para (iv) is stated to further clarify this aspect that if there is process of selection or consideration of comparative merit or suitability for granting the upgradation or W.P.(C) Nos. 18749 of 2018 and Batch Page 23 of 29 // 24 // benefit of advancement to a higher pay scale, it will be a promotion."
31. The decision in Union of India v. Pushpa Rani (supra) was again discussed in Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (supra) and explained as under:
"28.In Pushpa Rani (2008) 9 SCC 242, this Court while considering a scheme contained in the Letter dated 9-10-2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill up such posts by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the reservation rules were applicable."
32.1. The recent decision in Rama Nand v. Chief Secretary, Govt. of NCT of Delh, 2020 (II) OLR (SC) 487 has summarized the legal position succinctly after referring to the earlier decisions in Union of India v. Pushpa Rani (supra) and Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (supra).
32.2. In Rama Nand (supra) the situation was converse to the situation on hand. There the Appellants were working as Telephone Operator under the Delhi Fire Service. On account of re- organization of the wireless communication system, 96 posts of Radio Telephone Operators were sought to be created in terms of a letter dated 29th August, 1983. Six Radio Operators were already operating as such, while 27 Telephone Operators in the pay scale of Rs.260-400/- were deployed as RTOs in a higher pay scale and this re-organization scheme was approved on 10th October, 1983. To be W.P.(C) Nos. 18749 of 2018 and Batch Page 24 of 29 // 25 // deployed as RTOs, the TOs had to go through training, and they had to have five years of regular service.
32.3. Thereafter, when on 9th August 1999, an ACP scheme was floated, the TOs/ RTOs who were not permitted them that benefit since their conversion to the aforesaid post were treated as a promotion.
32.4. The Supreme Court on examining the case law came to the conclusion that the pre-qualification of minimum five years of service, the higher financial benefit and the requirement of a specialized training, when considered together, led to the conclusion that it was a case of a promotion. In other words, all TOs would not automatically be eligible for the new posts. Therefore, it could not be stated to be "only in exercise of merely re-description or re-organization of the cadre."
33. In the present case, the converse is true. What happened on 13th October 2009 was not really a promotion as is contended by the State. It was across the board and it was a re-fitment of the post of ACF as Group-A (Jr. Branch) with the promotion avenue to the post of DFO remaining intact. ACF was still the entry level grade. In order to remove the anomaly between the Forest Ranger being a Group B post, the post of ACF was re-designated as Group-A (Jr. Branch). This was en masse across the board. Therefore, there is merit in the contention of the Opposite Parties that this type of upgradation due to re-structuring is purely related to grant of W.P.(C) Nos. 18749 of 2018 and Batch Page 25 of 29 // 26 // financial benefit without involving any element of promotion. All the promotion avenues remained intact, i.e. the promotional avenue from Forest Ranger to ACF and ACF to DFO. This was, therefore, in terms of the law explained in Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (supra), a mere upgradation without any promotional benefit.
34. Upon carefully examining the resolution dated 6th February 2013, it is seen the above upgradation effected in 2009 as a result of restructuring of the cadre cannot be construed to be an upgradation which would deny the benefit of the RACPS which in any event was not in force at the relevant point in time. For the same reason, the TBA granted earlier in 2005 cannot be considered to be as an upgradation which would deny the Opposite Parties the benefit of the RACPS. In other words, merely because the employee had availed a TBA or ACP prior to 2013, he cannot be denied to the benefit of the RACPS. Unless a person has already got a promotion within time period of 10, 20 and 30 years in the manner indicated, he cannot be denied the RACPS benefit.
35. There is merit in the contention of the Opposite Parties in terms of the judgment of this Court in State of Odisha v. Bihari Lal Barik (supra), if a clarification is issued by the Government contrary to a statutory scheme, it is the scheme that would prevail. It was clarified in the said decision "if clarification is contrary to scheme, scheme has to be followed." In other words, there cannot be a clarification by way of an OM which would take away the benefit W.P.(C) Nos. 18749 of 2018 and Batch Page 26 of 29 // 27 // granted under the scheme unless the scheme itself is amended. As already noticed, the decision of this Court in State of Odisha v. Bihari Lal Barik (supra) was affirmed by the Supreme Court when it dismissed the SLP filed by the State of Odisha on 23rd August, 2017.
36. There is also merit in the contention of the Opposite Parties that in regard to certain other posts in the State Secretariat and the Water Resources Department, where restructuring took place, the benefit of the RACPS was not denied merely because, as a result of restructuring, the employees enjoyed the benefit of higher pay. No satisfactory explanation has been offered by the Petitioners for the Opposite Parties belonging to F&E Department being discriminated vis-à-vis the employees of the Water Resources Department and the State Secretariat.
37. Mr. Sahoo, learned Additional Government Advocate has placed considerable reliance on the observation in S.S. Ranade (supra). In the said case, there was no doubt that an element of selection was involved in granting selection grade "because there is no automatic promotion to the selection grade pay scale." Further, the selection grade posts were created "entirely for the purposes of granting some reliefs to those who have very limited avenues of getting promotion to a higher post." However, the facts in the present case are different. The upgradation that took place in 2009 was not with a view to granting any promotion. There was no element of selection involved.
W.P.(C) Nos. 18749 of 2018 and Batch Page 27 of 29// 28 //
38. Even the decision in Secretary, Government (NCT of Delhi) v. Grade-I Dass Officers' Association (supra) appears to have turned on its own facts. There it was held that if the claims of the Opposite Parties were accepted they would get a much higher scale despite being in Grade-II (Group-B) of DANICS than available even to Grade-I (Group-A) of DANICS. In such a situation, it was held that granting such benefit would be violative of Articles 14 and 16 of the Constitution. It was observed as under:
"Fairness on the part of State is a constitutional obligation and hence a pay scale, which regularly promoted employee earlier belonging to Grade-I (DASS) could not get due to established hierarchy for promotion, cannot be granted to those like the Respondents on the plea that the financial upgradation to which they are found entitled as per existing hierarchy is too meager. In case Respondents' claim was to be allowed on the ground accepted by the High Court that financial upgradation must be real and substantial, in case of regular promotion in future, employees like the Respondents would have to be reduced in their pay scale because actual or functional promotion as per established hierarchy can be only on a post in Grade II (Group B) in DANICS."
39. However, in the present cases, the benefit granted by way of restructuring was across the board and therefore the question of discriminating against a set of employees did not arise.
40. For all of the aforementioned reasons, the Court affirms the impugned order the OAT and finds no grounds to interfere with it.
W.P.(C) Nos. 18749 of 2018 and Batch Page 28 of 29// 29 //
41. The writ petitions are accordingly dismissed, but in the circumstances, with no order as to costs.
(Dr. S. Muralidhar) Chief Justice ( B.P. Routray ) Judge S.K. Guin W.P.(C) Nos. 18749 of 2018 and Batch Page 29 of 29