Orissa High Court
Afr vs State Of Odisha And Others ..... Opp. ... on 22 September, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 18142 OF 2020
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR Susanta Kumar Dash ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. M.K. Mohanty,
A. Mishra, M.R. Pradhan
and T. Pradhan, Advocates.
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN Date of hearing and Judgment : 22.09.2023 DR. B.R. SARANGI, J. The petitioner, who is working as a Duftary in the office of the S.D.J.M., Sonepur in the district of Subarnapur, has filed this writ petition seeking to quash the order dated 27.01.2020 passed by the learned District Judge, Sonepur under Annexure-8 Page 1 of 35 rejecting the representation filed by him to grant promotional scale of pay of Rs.2610-60-3150-65-3450/- (Rs.4440-7440/- with G.P. of Rs.1400/-, the revised scale of pay), as per the recommendation of Justice Shetty Commission with effect from 01.05.1999 and give him all consequential financial and service benefits.
2. The factual matrix of the case, in brief, is that the petitioner, having Class-X failed qualification, was appointed as Office Peon in the office of the Chief Judicial Magistrate (CJM), Sonepur on 01.05.1999. While he was so continuing, a resolution was passed on 24.12.2010 by the Law Department of Odisha to implement the recommendation of Justice Shetty Commission in respect of Non-Judicial Staff of Sub-ordinate courts in the State. Thereafter, this Court, on 16.08.2012, informed all the District and Sessions Judges to grant promotional scale of pay of Rs.2610-3450/- to Orderly Peons/Office Peons/ Sweepers/ NWM-cum-Sweepers/ Malkhana Guards/ Malkhana Peons/ Treasury Peons. Again, on 21.12.2012, Page 2 of 35 this Court directed to grant promotional scale of pay of Rs.2610-3540/- (Rs.4440-7440/- with Grade Pay of Rs.1400/- revised scale of pay) to Orderly Peons/Office Peons/ Sweepers/ NWM-cum-Sweepers/Malkhana Guards/ Malkhana Peons /Treasury Peons. Thereafter, on 12.03.2014, following due procedure, the petitioner was promoted to the post of Duftary, pursuant to which he joined in the post on 02.04.2014. While he was so continuing, the petitioner was given RACP on 01.10.2015 with effect from 01.01.2013.
2.1. Thereafter, on 13.09.2017, the petitioner made a representation to the learned District Judge, Sonepur, through the S.D.J.M., Sonepur, to grant him promotional scale of pay, as per resolution dated 14.05.2010 and also as per the direction of this Court on 21.12.2012. The S.D.J.M., Sonepur recommended the case of the petitioner on 20.02.2019 stating inter alia that the petitioner is discharging his duty with sincerity. Again, on 20.11.2019, similar recommendation was also made by Page 3 of 35 the S.D.J.M., Sonepur. On consideration of the recommendations, the representation filed by the petitioner was rejected by the learned District Judge, Sonepur vide Annexure-8 dated 27.01.2020 stating inter alia that the petitioner has already obtained his RACP w.e.f. 01.01.2013 and, therefore, he is not entitled to get the promotional scale of pay, as claimed by him. Hence, this writ petition.
3. Mr. M.K. Mohanty, learned counsel for the petitioner contended that since the petitioner joined in the post of Office Peon and subsequently got promotion to the post of Duftary on 12.03.2014, in which post he joined on 02.04.2014, he is entitled to get promotional scale of pay of the post of Duftary, in view of the recommendation made by Justice Shetty Commission and also the communications made by this Court on 16.08.2012 and 21.12.2012. But, without considering the same in proper perspective, rejection of the representation filed by the petitioner on 13.09.2017 vide impugned order dated Page 4 of 35 27.01.2020, cannot be sustained in the eye of law and the same is liable to be quashed.
4. Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State-opposite parties contended that it is not in dispute that the petitioner was continuing as an Office Peon and thereafter promoted to the post of Duftary. But, by the time he got promotion to the post of Duftary, he had already exercised his option to get the benefit of RACP. It is contended that pursuant to the order dated 01.10.2015, the benefit of RACP had already been extended to the petitioner w.e.f. 01.01.2013, which was prior to his date of promotion, i.e., 12.03.2014 to the post of Duftary, in which he joined on 02.04.2014. It is further contended that due to stagnation of promotional benefit, RACP is being paid to an employee and, as such, the petitioner, having exercised his option and received such benefit w.e.f. 01.01.2013 before he got promotion, now question of granting any promotional scale of pay does not arise because the petitioner has Page 5 of 35 already reached the scale of pay admissible to the promotional post. Thus, it is contended that the learned District Judge, Sonepur has not committed any error in rejecting the representation filed by the petitioner on 13.09.2017 vide the order impugned dated 27.01.2020 and, as such, the same does not warrant any interference of this Court at this stage. Consequentially, dismissal of the writ petition is sought for.
5. This Court heard Mr. M.K. Mohanty, learned counsel appearing for the petitioner and Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State-opposite parties in hybrid mode and perused the record. Pleadings having been exchanged between the parties, the matter is being disposed of finally with the consent of learned counsel for the parties at the stage of admission.
6. The undisputed fact is that the petitioner was appointed as Office Peon on 01.05.1999 and got promotion to the post of Duftary on 12.03.2014, pursuant Page 6 of 35 to which he joined on the said post on 02.04.2014. Prior to getting promotion, he had exercised his option to receive the benefit of RACP because of the fact of stagnation of promotional post, which he availed w.e.f. 01.01.2013, pursuant to order dated 01.10.2015. Having received RACP benefit w.e.f. 01.01.2013, now the petitioner claims that he is entitled to get scale of pay admissible to the promotional post of Duftary, which is no more available to him, as he has already reached the scale of pay attached to the post of Duftary by availing RACP.
7. Before delving into the question involved in the present writ petition, it is worthwhile to note that being rules made by the Governor of Odisha under clause (b) of sub-section (2) of Section 241 of the Government of India Act, 1935 continued in force under Article 330 of the Constitution of India, as amended from time to time under the proviso to Article 309 of the Constitution of India, the Odisha Service Code was framed, which came into force with effect from the 1st April 1939. The rules in Page 7 of 35 the Odisha Service Code, which have been framed by the Governor of Odisha under clause (b) of sub-section (2) of Section 241 of the Government of India Act, 1935, are applicable to State Services, Special Officers and Subordinate Services under the rule-making control of the Government of Odisha. Thereby, the Odisha Service Code is deemed to be Code of Rules made under Article 309 of the Constitution of India.
8. In Finance Department Notification No.11711- F dated 20th August, 1950, it has been clarified that in exercise of powers conferred by Article 309 of the Constitution of India read with Article 302 thereof, the Governor of Odisha has been pleased to direct that the Odisha Service Code shall be deemed to be a Code of Rules made under Article 309 of the Constitution of India.
9. In B.S. Jadav v. State of Haryana, AIR 1981 SC 561, the apex Court held that the power of Governor under proviso to Article 309 of the Constitution is legislative power. Under this proviso, he substitutes for Page 8 of 35 the legislature because the legislature has not yet exercised its power to pass an appropriate law on the subject. The Governor is thus competent to frame rules regarding recruitment and conditions of service of Judicial Officers by virtue of powers under Article 309 of the Constitution.
10. In State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296, the apex Court held that Article 309 of the Constitution is expressly made subject to other provisions of the Constitution and subject to that, appropriate legislature or Governor can regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of State concerned.
11. Applicability of said rules to a public servant is well defined in S.V. Perelekar v. District Magistrate, Thane, AIR 1957 SC 23, wherein the apex Court stated that the test to determine whether a person is a public servant is-
Page 9 of 35
(1) Whether he is in the service and pay of the Government; and (2) Whether he is entrusted with the performance of any public duty.
12. In Ramesh Balak Kishna Kalkarni v. State of Maharashtra, AIR 1985 SC 1655, the apex Court held that a public servant is an authority who must be appointed by the Government authority, remain in the pay of the Government discharge duties in accordance with Rules, regulations made by the Government.
13. Therefore, a public servant, being in service and pay of the Government, performs the public duties is the test to be followed for the said purpose. Rule-33 of the Odisha Service Code has explained the meaning of 'pay' which reads as follows:
"'Pay' means the amount drawn monthly by the Government servant as:-
(a) (i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in the cadre.
(ii) special pay and personal pay; and Page 10 of 35
(iii) any other recurring emoluments which may be specially classed as pay by the State Government.
(b) In the case of an officer of another State Government or Government of India on deputation to the government of Orissa, "Pay"
means the pay as defined in the rules of the said State Government or Government of India and applicable to the officer during the period of deputation, except as otherwise specified in the terms the deputation with the concurrence of the Government of Orissa."
14. The Concise Oxford Dictionary, 8th Edition (1990 at page 874) defines the word 'pay' in its ordinary significance in relation to service means to give what is due for service done. But in relation to Public service in India, the word "pay" contained in the various service Rules.
15. In State Bank of India v. K.P. Subbaiah, 2003 AIRSCW 3436, the apex Court held as follows:-
"In service Jurisprudence the expression 'pay' and 'pay scale' are conceptually different connotations. Pay is essentially a consideration for the services rendered by an employee and is the remuneration which is payable to him. Remuneration is the recurring payment for services rendered during the tenure of employment. Pay and salary are necessary not interchangeable concepts."Page 11 of 35
16. In N.D.P. Namboodripad v. Union of India, (2007) 4 SCC 502, the apex Court held that 'pay' means the amount drawn monthly by an officer as-
(i) The pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which is entitled by reason of his position in a cadre,
(ii) Personal pay and special pay, and
(iii) Any other emoluments which may be specially classed as pay by the Government.
17. This being the meaning and definition of 'pay' attached to Rule-33 of the Odisha Service Code, Chapter- IV of the said Code deals with 'Pay' in broader sense and Section-1 thereof deals with time scale of pay. Rule-73 of the Odisha Service Code reads as follows:
"The rules in this section apply to all time scale of pay, except in so far as they may be inconsistent with terms specially sanctioned by the State Government for any particular time scale. The application of Rules 76 and 81 is not confined to posts on a time scale of pay but extends to all posts."Page 12 of 35
18. In Bombay Dyeing and Manufacturing Co. v. State of Bombay, AIR 1958 SC 328, the apex Court held that a Government employee is entitled to draw the pay while he is on duty. The duty includes the departmental examination or any other optional examination or training of the Government employees, provided they are permitted to do so by the authority concerned. When an employee has done his work, the amount of wages earned by him becomes a debt due to him from the employer and is property, which can be assigned under the law. If the pay has accrued, the right to receive it becomes a Fundamental Right.
19. Rule-74 of the Odisha Service Code deals with fixation of pay, which reads as follows:
"(a) The initial pay of a person, other than one already in service of Government, when appointed to a post under government shall be the minimum of the pay scale prescribed for the post unless otherwise decided by Government.
(b) Where a Government servant holding a post, is promoted or appointed to another post carrying duties and responsibilities of greater importance than those attached to Page 13 of 35 the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has acquired.
Provided that where a Government servant, immediately before his promotion or appointment to a higher post; is drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage, next above the pay notionally arrived at by increasing his pay in respect of the lower post by an amount equal to his last increment in the time scale of the lower post.
(c) [Deleted w.e.f.28. 5. 1987 vide F.D. Notification No. 22836/F. dt 26. 5.1987.]
(d) Where a Government servant is appointed to another post which does not involve assumption of duties and responsibilities of greater importance than those atto the old post, his pay will be fixed at the stage of the time-scale which is equal to his pay in respect of the old post, or if there be no such stage, the stage next below that pay plus personal pay equal to the difference, and in such time as he would have received an increment in the time scale of the old post or for the period after which an increment is earned in the time-scale of the new post, whichever is less.
Provided that where the minimum pay of the time-scale of the new post is higher that his in respect of the old post, he will draw that minimum as initial pay.
Provided that cases covered by the sub-rule (b) and this sub-rule other than cases of reemployment after resignation, removal or dismissal from public service, if the Government servant either has previously held the same post or a post on an identical time-scale, then the Page 14 of 35 initial pay shall not be less than the pay, other than special pay personal pay, or emoluments specially classified as pay by the State Government under clause (iii) of sub-rule (a) of Rule 33, which he drew on the last such occasion, and the period during which he drew that pay on such last and any previous occasions all count for increment in the stage of the time scale equivalent to that pay. If stage next below that pay, the difference being allowed as personal pay. However, except the case where the Government servant is appointed to the same post, if the pay last drawn by the Government servant in a temporary post has been inflated by the grant of premature increments, the pay which he would have drawn but for the grant of those increment shall be taken for the purpose of this provision to be the pay which he last drew, in the temporary post.
(e) If the substantive pay of the permanent post is at any time enhanced as a result of increment or otherwise, the pay of the Government servant shall be refixed from the date of such enhancement, where such refixation is to his advantage provided that the pay so refixed does not exceed the substantive pay in the permanent post. This shall not apply to a Government servant who is appointed on his own request to the new post.
(f) When a Government servant is transferred on his request to a post carrying less pay than the pay of his old post and the maximum pay in the time scale of that post is less than his pay in respect of the old post, he will draw that maximum as initial pay."
20. In Finance Department Notification No.3364/F dated 06.02.1964, it has been stated as follows:- Page 15 of 35
"1. Authority competent to fix the pay: The undersigned is directed to say that references are made to this Department for clarification of the authority competent to fix the pay under Rule 74 of the Orissa Service Code, Volume I. According to the provision of Rule 4 of the Orissa Service Code, Volume I, any power which is expressed in the rules of the said Code as residing in the State Government and delegated after consultation with Finance Department may be exercised by the subordinate authority in respect of Government servants under its administrative control to such extend and subject to such condition as the State Government may determine. In pursuance of this, when no power in the rules of the said Code has been expressed as residing in the State government, the concurrence of finance Department for grant of concession admissible under the rule is not insisted upon by the audit. When the rule confers a certain benefit without specifying the authority competent to exercise the power, the State government servant is entitled to the same and it can be allowed by the Head of Office by issue of an office order. Even where the appointing authority is a superior officer, the subordinate officer is competent to allow such concession by issue of an office order. As in the Rule 74 ibid., no power as residing in the State Government has been expressed and the authority competent to fix the pay has not been specified, the concurrence of Finance Department is not necessary for fixation of pay under the said rule excluding the cases coming under the "Exception" thereunder. In the matter of fixation of pay where a certificate is required to be furnished under the "Exception" of the said rule the concurrence of the Finance Department to the issue of the said certificate may be obtained for satisfaction of audit."
Similarly, Finance Department Notifications No.24495/F., dated 21.06.1988 and No.25773/F., dt. Page 16 of 35 11.06.1992 prescribe with regard to exercise of option for fixation of pay on promotion to higher post, to the following effect:-
"2. Exercise of option for fixation of pay on promotion to higher post: An employee may be given the benefit of exercising an option for fixation of his pay on promotion as under:
(a) Either his initial pay may be fixed in the higher post on the basis of Rule74(b) of Orissa Service Code straightway without further review on accrual of increment in the pay scale of the lower post, or
(b) his pay may be fixed initially in the manner as provided under Rule 74(d) of Orissa Service Code which may be refixed on the basis of the provisions of Rule 74(b) of Orissa Service Code on the date of accrual of his next increment in the scale of pay of the lower post.
Consequently upon fixation of pay under (b) above, the next date of increment will fall due on completion of 12 months' qualifying service from the date the pay is refixed on the second occasion.
2. Option can only be exercised in case of regular promotion where fixation of pay is required to be made under Rule 74 (b) of Orissa Service Code.
3. Option is not admissible in case of combination of appointments or purely temporary promotion (which does not include ad hoc promotion made on the basis of D.P.C. recommendation).
4. Protection of officiating pay drawn during earlier occasin available under the third proviso to Rule 74(d) of Orissa Service code will not be Page 17 of 35 applicable where option is exercised for refixation of pay under Rule 74(b) of Orissa Service code after accrual of increment in the lower post."
21. Rule 76 of the Odisha Service Code reads as follows:-
"Pay when pay of a post is changed:
The holder of a post, the pay of which is changed, shall be treated as if be were transferred to a new post on the new pay; provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time-scale. The option once exercised is final."
22. On the basis of the recommendation of the 6th Central Pay Commission, Government of India in the Ministry of Finance (Department of Expenditure), vide Notification No.G.S.R.622(E) dated the 29th August, 2008, revised the pay scale of Central Government employees w.e.f. 01.01.2006. Consequent upon revision of the pay scale of the Central Government employees, the State Govt. constituted a Fitment Committee in FD Resolution No.CS-I(P)-15/2008-41279/F, dated the 9th September, 2008 to recommend revision on the pay scale of the State Page 18 of 35 Government employees, to suggest modalities and procedure of fitment of the existing grades in the revised scale of pay, to examine anomalies in the existing pay scale and to review the scale of other allowances and relatable pay. The said committee submitted its recommendation to Government on 03.12.2008.
23. Having regard to the recommendation of the Fitment Committee, demands of various service associations and after careful consideration of all aspects of related issues, including the Scales of Pay prevalent in the Central Government, the State Government revised the pay structure of the State Government employees as indicated in Annexure-1 thereof. It has been stipulated therein that Assured Career Progression (ACP) will be applicable to all the State Government employees up to Grade-A w.e.f. 01.01.2006 in three stages i.e. 1st ACP on completion of 15 years, 2nd ACP after 25 years and 3rd ACP after 30 years of service, if they continue in one post/grade. The benefit of ACP will be given only after Page 19 of 35 screening of each and every case by the screening committee to be constituted by the controlling Departments and all norms of promotion shall be taken into consideration for allowing ACP in different stages. The financial benefit to the extent of 3% of the basic pay plus grade pay will be added on availing ACP in different stages and next increment will accrue one year after. If the Government employee has already availed both 1st and 2nd stage of Time Bound Advancement (TBA) scale under earlier revised pay rules, he/she will not be again entitled to the ACP in the revised pay. However, the 3rd ACP after completion of 30 years of service shall be applicable, as stated therein. Accordingly, pay fixation formula evolved and benefit has been extended w.e.f. 01.01.2006 to all the State Government employees.
24. The State Government, vide Finance Department Notification No.3560/F., dated 06.02.2013, introduced Revised Assured Career Progression Scheme Page 20 of 35 (RACPS) for the State Government Employees, which reads as follows:-
"The State Government considered the recommendations of the Fitment Committee and granted Assured Career Progression (ACP) to the State Government employees on completion of 15th , 25th and 30th years of service akin to the Time Bound Advancement (TBA) provisions of he Orissa Revised Scales of Pay Rules, 1998. Accordingly, all State Government employees avail ACP in 3 stages i.e. Ist ACP on completion of 15 years of service, 2nd ACP after 25 years Or service and 3rd ACP after 30 years of service in their original post/grade by addition of one increment @ 3% on the Basic Pay + Grade Pay with next annual increment after a period of one year from the date of sanction of the ACP.
2. The Government of India in the meanwhile, had introduced Modified Assured Career Progression Scheme (MACPS) for the Central Government Civilian employees in supersession of the provisions of ACP scheme. Consequent upon implementation of the MACPS by the Government of India, various Service Associations of the State Government employees have come up with memoranda to consider implementation of the MACPS in respect of employees of the State Government.
3. Taking into account the uncertain promotional avenues and career stagnation of the State Government employees, Government after careful consideration have decided to implement a career advancement scheme to be known as REVISED ASSURED CAREER PROGRESSION SCHEME (RACPS).
4. The RACPS is to be effective from 01.01.2013.Page 21 of 35
5. The details of the RACP Scheme and conditions for grant of the financial upgradation under the Scheme are given in Annexure-1.
As it appears, under the Revised Assured Career Progression Scheme (RACPS), there shall be three financial up-gradations under the RACPS, counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion.
An employee, if completed 10 years of service in the entry grade will be considered for 1st up-gradation under RACPS. An employee completing 20 years of service and has got only one upgradation either by promotion or by RACPS will be considered for the 2nd upgradation.
Similarly, an employee completing 30 years of service and has got two upgradation either by RACPS or promotion or both will be considered for 3rd upgradation under RACPS.
The financial upgradation under the RACPS would be admissible upto the highest Grade Pay of Rs.7600/- in the Pay Band PB-3 under ORSP Rules, 2008.
Therefore, it is made clear from the above provision that 'pay' means the amount drawn monthly by Page 22 of 35 the Government servant on various heads, as mentioned in Rule-33 of the Odisha Service Code.
25. Rule-73 deals with time scale of pay adhering to the pay fixation formula. As mentioned therein, and under the Odisha Revised Scale of Pay Rules, 1998, though Assured Career Progression was granted and basing upon that the Revised Scale of Pay Rules, 2008 also extended such benefit w.e.f. 01.01.2008, subsequently RACPS was introduced by the State Government to give financial upgradation to its employees on completion of 10 years, 20 years and 30 years of service due to stagnation in the promotional benefits.
26. In Col. B.J. Akkara (Regd.) v. Govt. of India, (2006) 11 SCC 709, the apex Court held that a "pay scale"
has basically three elements. The first is the minimum pay or initial pay in the pay scale. The second is the periodical increment. The third is the maximum pay in the pay scale. An employee starts with the initial pay in the pay scale and gets periodical increases (increments) Page 23 of 35 and reaches the maximum or ceiling in the pay scale.
Each stage in the pay scale starting from the initial pay and ending with the ceiling in the pay scale, when applied to an employee is referred to as "basic pay" of the employee. Whenever the Government revises the pay scales, a fitment exercise takes place as per the principle of fitment (formula) provided in the rules governing the revision of pay so that the "basic pay" in the old scale is converted into a "basic pay" in the revised pay scale.
27. In Gurpal Tuli v. State of Punjab, 1984 (Supp.) SCC 716 : AIR 1984 SC 1901, the apex Court held that to be entitled to draw a particular pay scale the employee must fulfil the eligibility conditions whether by way of qualification or otherwise.
28. In St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 : AIR 1992 SC 1630, the apex Court held that public services comprise different grades of employees. It is basically a hierarchical system. The pay scales are framed in a descending order viz., the Page 24 of 35 highest scale is prescribed for the highest grade and thereafter followed by lower scales attached to the descending grades of service. This is consistent with Art.14 of the Constitution which mandates that unequals cannot be treated as equals.
29. In State Bank of India v. K.P. Subbaifah, (2003) 11 SCC 646 : AIR 2003 SC 3016, the apex Court has observed that since public service comprise different grades, different pay scales are provided for different grades and as such the pay of an employee is fixed with reference to a pay scale.
30. In State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121 : AIR 1989 SC 19, the apex Court held that the fixation of pay scales is essentially an executive function. The answer to the question whether an officer or a group of officers is entitled to a particular scale depends upon several factors. It requires evaluation of duties and responsibilities of posts and should be determined by expert bodies like the Pay Commission. Page 25 of 35
The Pay Commission would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it.
31. In Delhi Veterinary Association v. Union of India, (1984) 3 SCC 1 : AIR 1984 SC 1221, the apex Court held that although it is primarily the function of the Pay Commission to determine matters relating to pay structure and to apply such norms as are proper and relevant, certain "basic principles" are to be followed in fixing pay scales of various posts and cadres in the Government service.
The apex Court considered the matter both from the point of view of the employees and the employer. As far as the employees are concerned, the apex Court observed as follows:-
"The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical Page 26 of 35 requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors."
As far as the employers are concerned the apex Court ruled as follows:-
"At the same time while fixing the pay scales, the paying capacity of the Government, the total financial burden which has to be borne by the general public, the disparity between the incomes of the Government employees and the incomes of those who are not in Government service and the net amount available for Government at the current taxation level, which appears to be very high when compared with other countries in the world, for developmental purposes after paying the salaries and allowances to the Government servants have also to be borne din mind. These are, however, not exhaustive of the various matters which should be considered while fixing the pay scales. There may be many others including geographical considerations."Page 27 of 35
Then the apex Court referred to certain broad and general considerations which a Pay Commission ought to have in mind:-
"In an egalitarian society based on planned economy it is imperative that there should be an evolution and implementation of a scientific national policy of incomes, wages and prices which would be applicable not merely to Government services but also to the other sectors of the national economy. As far as possible the needs of a family unit have to be borne in mind in fixing the wage scales. The 'needs' are not static. They include adequate nutrition, medical facilities, clothing, housing, education, cultural activities etc. Any provision made while fixing the pay scales for the development of a society of healthy and well educated children irrespective of the economic position of the parents is only an investment and not just an item of expenditure. In these days of galloping inflation, care should also be taken to see that what is fixed today as an adequate pay scale does not become inadequate within a short period by providing an automatic mechanism for the modification of the pay scale."
32. In Secretary, Finance Department v. West Bengal Registration Service Association, 1993 Supp. (1) SCC 153 : AIR 1992 SC 1203, the apex Court held that ordinarily a pay structure is evolved keeping in mind several factors e.g. (i) method of recruitment, (ii) Page 28 of 35 level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational and technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities,
(vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capability to pay, etc. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.
33. Much reliance has been placed on the resolution dated 24.12.2010 of the Government of Odisha in Law Department, wherein it has been notified with regard to implementation of Justice Shetty Commission's recommendations in respect of Non-Judicial staff of Page 29 of 35 Subordinate Courts in the State, in pursuance of the direction contained in the judgment dated 07.10.2010 of the apex Court in W.P.(C) No.1022 of 1989 (All India Judges Association v. Union of India). With regard to implementation of the recommendations of Justice Shetty Commission in respect of Non-Judicial Staff of Subordinate Courts, the State Government, after careful consideration, decided to implement the recommendations made by Justice Shetty Commission for the Non-Judicial Staff of Subordinate Courts in the State of Odisha. Accordingly, the existing scale of pay of Rs.2610-60-3150-65-3540 of Duftary/ Gardener/ Jamadar/ Record Keeper under the ORSP Rules, 1998 was revised to Rs. 2650-65-3300-70-4000/- subject to fulfillment of the stipulations made by the Justice Shetty Commission, i.e., qualification, mode of recruitment and reservation, etc. to be provided in the relevant Ministerial Service Rules.
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34. This Court, vide letter dated 16.08.2012 under Annexure-4, instructed all the District & Sessions Judges to grant promotional scale of pay of Rs.2610-3430/- to Orderly Peons/ Office Peons/ Sweepers/NWM-cum- Sweepers/ Malkhana Guards/ Malkhana Peons/Treasury Peons, as per recommendation of Justice Shetty Commission, and also directed to identify such Class-IV (Group-D) employees for getting benefit of promotional scale keeping in view the recommendation of the Justice Shetty Commission and intimate this Court for taking necessary action. Thereafter, this Court, vide letter dated 21.12.2012 issued to all the District and Sessions Judges, intimated that the Class-IV (Group-D) employees of the Sub-ordinate Courts, such as Office Peons, Orderly Peons, malkhana Guards and Treasury Peons, who possesses the qualification of VII standard and have put in 10 years of service and are not wholly connected with manual work but carrying higher duties and responsibilities, are entitled to get the benefit of promotional scale of pay of Page 31 of 35 Rs.2,610-3,540/- (Rs.4,440-7,440/- with Grade Pay Rs.1,400/- the revised scale of pay).
35. There is no doubt that the recommendation of Justice Shetty Commission, which has been accepted by the Government of Odisha in its Law Department, pursuant to order of the apex Court in W.P.(C) No.1022 of 1989 (All India Judges Association v. Union of India), now has been implemented in the Sub-ordinate Courts, vide letters dated 16.08.2012 and 21.12.2012 of this Court. There is no iota of doubt that Class-IV employees are entitled to get the benefit of the recommendation of Justice Shetty Commission and, as such, their scale of pay have been fixed and, accordingly, they have been extended with the benefit as due and admissible to them.
36. Now question comes when the petitioner had opted for RACP benefit and in fact he was extended with such benefit w.e.f. 01.01.2013 by communicating him vide letter dated 01.10.2015 and, thereafter, he got promotion to the post of Duftary on 12.03.2014, pursuant Page 32 of 35 to which he joined on 02.04.2014, can he be again entitled to get the scale of pay in his promotional post of Duftary, which scale he has already availed by way of RACP by exercising his option. To be more specific, the petitioner, on 16.09.2013, exercised his option to cover himself under the RACP Scheme. Accordingly, his case was considered and he was given the benefit of RACP, vide order dated 29.09.2015.
37. It is worthwhile to mention here that in para-5 of the resolution dated 24.12.2010 of the Govt. of Odisha in Law Department, it has been clearly mentioned that an employee, who has availed the benefits of RACPs (earlier it was ACP), shall not be entitled to get the promotional benefits. Since the petitioner has voluntarily availed RACP by exercising his option, he is not entitled to get the benefits of higher scale of pay of Rs.2610-60-3150-65- 3450/-, in view of the letter dated 21.12.2012 of this Court read with the Govt. of Orissa, Law Department resolution dated 24.12.2010.
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38. Needless to say, since the petitioner has already availed the benefit of RACP and in fact the same has been extended to him w.e.f. 01.01.2013, even if the petitioner was promoted to the post of Duftary, no such further benefit can be granted to him because he has already reached the scale of pay admissible to the post of Duftary by way of RACP and, as such, no double benefit can be available to the petitioner so far as the scale of pay is concerned. As the petitioner has already exercised his option to avail RACP benefit and the same has already been extended to him w.e.f. 01.01.2013, merely because subsequently he got promotion to the post of Duftary on 12.03.2014, in which he joined on 02.04.2014, he once again cannot be entitled to get promotional scale of pay in the post of Duftary, as he has already received such benefit w.e.f. 01.01.2013. Thereby, the representation filed by the petitioner on 13.09.2017 has been rightly considered and rejected by the learned District Judge, Sonepur vide order impugned dated 27.01.2020. Page 34 of 35
39. In the above view of the matter, this Court does not find any error apparent in the order dated 27.01.2020 passed by the learned District Judge, Sonepur in rejecting the representation filed by the petitioner on 13.09.2017 so as to warrant interference with the same.
40. In the result, therefore, the writ petition merits no consideration and the same is hereby dismissed. However, there shall be no order as to costs.
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DR. B.R. SARANGI,
JUDGE
M.S. RAMAN, J. I agree.
.................................. M.S. RAMAN, JUDGE Orissa High Court, Cuttack The 22nd September, 2023, Alok/Ashok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 25-Sep-2023 16:19:35 Page 35 of 35