Orissa High Court
State Of Odisha And Another vs Bihari Lal And Others on 27 June, 2016
Author: Indrajit Mahanty
Bench: Indrajit Mahanty
IN THE HIGH COURT OF ORISSA, CUTTACK.
W.P.(C) No. 2831 OF 2016
An application under Articles 226 and 227 of the Constitution of India.
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State of Odisha and another ........ Petitioners
-Versus-
Bihari Lal and others ......... Opp. parties
For Petitioners - Mr. M. Sahu,
Addl. Government Advocate
For Opp. Parties - M/s. Ashok Mohanty, V. Narasingh
S. Das and S. Devi
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P R E S E N T :-
THE HONOURABLE MR. JUSTICE INDRAJIT MAHANTY
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of Argument- 18.05.2016 : Date of Judgment-27.06.2016
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DR. D.P. CHOUDHURY, J. Challenge has been made to the order dated
12.03.2015 passed by the learned Odisha Administrative Tribunal,
Bhubaneswar (hereinafter called "the Tribunal") in O.A. No.520 of 2014
filed by opp. Party no.1 with reference to application under provisions of
Orissa Revised Scale of Pay Rules, 2008 (in short Rules, 2008).
FACTS :
2. The unshorn details of the facts are that opp. Party no.1, who
was the applicant before the Tribunal was appointed as Village Level
Worker (hereinafter called V.L.W.) under the Village Level Worker
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(Recruitment and Conditions of Service) Rules, 2008 (hereinafter called
V.L.W. Rules, 2008). It is stated that V.L.W. is a single cadre under the
V.L.W. Rules, 2008. Opp. Party no.1 continued in the same post for more
than 15 years without any promotion. When the Government employee
has no prospect of any promotion, for financial upgradation at first
Government introduced Time Bound Advancement Scheme (in short TBA).
Later the said scheme was converted to Assured Career Progression
Scheme (hereinafter called ACPS). Under the Orissa Revised Scale of Pay
Rules, 2008 (hereinafter called the Rules, 2008) the Government
introduced Revised Assured Career Progression (RACP) Scheme for
financial upgradation for 10, 20 and 30 years of service instead of earlier
TBA at 15, 25 and 30 years of service in the original post or grade.
3. It is stated by the petitioner that V.L.W. being a single cadre
was entitled to such RACPS at 10, 20, and 30 years respectively in their
Grade Pay to Rs.2,200/-, Rs. 2,400/- and Rs.2,800/- respectively.
4. It is the case of the petitioner that opp. Party no.1 claimed
before the State Government for his financial upgradation and he has
promotional avenue to the posts of Grama Panchayat Extension Officer and
Progress Assistants created under Grama Panchayat Extension Officers and
Progress Assistants (Method of Recruitment and Conditions of Service)
Rules, 2002 (hereinafter called GPEO Rules, 2002). According to such
Rules the base level 50% of the posts of G.P.E.O./P.A. is to be filled up by
direct recruitment and rest 50% is to be filled up on promotion from
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V.L.Ws. It was the claim of opp. Party no.1 that since Grama Panchayat
Extension Officer (GPEO) and Progress Assistant (PA) are promotional
posts of V.L.W., under RACP Scheme as introduced by the State
Government vide Resolution dated 6.2.2013, he is entitled to Pay Band
and the Grade Pay of G.P.E.O. and P.A. in the event of completion of
required number of years of service inasmuch as under the ORSP Rules,
2008 Pay Band of G.P.E.O. and P.A. is higher than the Pay Band of V.L.W.
post.
5. The petitioner has issued two letters dated 21.2.2013 and
20.1.2014, whereunder V.L.W. is only eligible to get grade Pay of
Rs.2,200/- Rs.2,400/- and Rs.2,800/-. Challenging such letter opp. Party
no.1 preferred O.A. No.520 of 2014 before the Odisha Administrative
Tribunal (hereinafter called the Tribunal) and after hearing both parties,
the Tribunal allowed the prayer of opp. Party no.1 by observing that
V.L.Ws. are entitled to the financial upgradation for the post of GPEO/P.A.,
ABDO/SDPO and DPO on completion of 10, 20 and 30 years of service in
the of post of V.L.W. The petitioner challenged such decision in this writ
application.
SUBMISSIONS:
6. It is submitted by Mr. M. Sahu, learned Addl. Government
Advocate that the order of the learned Tribunal is illegal and against the
weight of evidence because V.L.W. is a single cadre and there is no
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promotional avenue of V.L.W. under the V.L.W. Rules, 2008. Learned
Tribunal has erred in law by observing that V.L.W. has got promotional
avenue by the provisions of G.P.E.O. Rules, 2002. According to him, when
V.L.W. becomes G.P.E.O., it is a change of cadre under separate Rules i.e.
G.P.E.O. Rules, 2002. Learned Tribunal ought to have held that V.L.W.
having no hierarchy of promotion under the V.L.W. Rules, opposite party
No.1 is only entitled to the Grade Pay against the Pay Band of the original
post held by the V.L.W. on completion of 10, 20 and 30 years of service.
7. It is submitted by Mr. Sahu, learned Addl. Government
Advocate that under the G.P.E.O. Rules, 2002 there are hierarchy of
promotion from G.P.E.O. to the post of S.D.P.O. and then to D.P.O. and in
that event according to ORSP Rules, 2008 the Grade Pay will be available
as per the RACP Scheme read with ORSP Rules, 2008. Learned Tribunal
has failed to appreciate the basic object of Revised Assured Career
Progression Scheme as delineated in the State Government resolution
dated 6.2.2013. He submitted that there is clear provision in paragraph-10
of Annexure-1 attached to letter dated 6.2.2013 that the employees in
isolated/ex-cadre post not having any promotional hierarchy will get the
next higher pay as per the first schedule of ORSP Rules, 2008 with the
interpolations, if any, introduced subsequently. Learned Tribunal has erred
in law to analyze such policy of the State Government and as such the
decision taken by the Tribunal is illegal and ambiguous, for which it should
be set aside.
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8. Mr. Ashok Mohanty, learned Senior Advocate appearing for opp.
Party no.1 submitted that D.P.E.O. Rules, 2002 and the V.L.W. Rules, 2008
should be read harmoniously. After going through both the Rules it must
appear that V.L.W. has got promotional hierarchy and it is not a single
cadre or isolated post. According to him when there is promotional
hierarchy of V.L.W. to the post of G.P.E.O. under G.P.E.O. Rules, 2002 the
RACP Scheme as introduced on 6.2.2013, opp. party no.1 is entitled to get
benefit in the event of his promotion is not made within the stipulated
years of service i.e. 10, 20 and 30 years. He, therefore, totally supported
the judgment of the learned Tribunal and submitted to dismiss the writ
application affirming the order of the learned Tribunal.
POINT FOR DETERMINATION:
9. Whether opp. party no.1 is entitled to the financial upgradation
under RACP Scheme and accordingly his pay is to be revised
under the first schedule of ORSP Rules, 2008 as applicable to
the post of G.P.E.O. and P.A. and onward posts?
DISCUSSION:
10. It is the admitted fact that opp. party no.1 was a V.L.W. under
the V.L.W. Rules, 2008 and he has rendered more than ten years of service
in the same post having no promotion to any other post. It is also not in
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dispute that RACP Scheme gives financial upgradation in three stages on
completion of 10 years, 20 years and 30 years of service instead of 15
years, 25 years and 30 years of service under ACPS Scheme respectively.
It is not also disputed that the State Government in Panchayati Raj
Department has issued a letter on 21.12.2013 stating that V.L.Ws. are
entitled to Grade Pay of Rs.2,200/-, Rs.2,400/- and Rs.2,800/- on
completion of 10, 20 and 30 years of service in the Pay Band of Rs.5,200/-
to Rs.20,200/- without specifying their appointment to any promotional
post.
11. On perusal of V.L.W. Rules, 2008, it appears that it is a
complete Rule so far as process of recruitment and condition of service is
concerned, but the Rule is silent about the promotional hierarchy of V.L.W.
Rule-3 of the V.L.W. Rules, 2008 prescribes that service shall comprise of
the cadre of Village Level Worker in each district. Thus, it is the only cadre
in the district, but not cadre in the State. On the other hand Rule-3 of the
G.P.E.O. Rules, 2002 maintains that the service shall consist of two cadres
namely (1) G.P.E.O. and (2) Progress Assistants. Here the legislature has
not maintained that it is a cadre in district, but it is a State cadre. Rule-5
of the G.P.E.O. Rules, 2002 specifies in the following manner:-
"5. The vacancies in the post of Grama Panchayat
Extension Officers and Progress Assitants arising in a calndar
year shall be filled up by direct recruitment through
competitive examination in accordance with Rule-9 to the
extent of 60 per cent and by promotion from among the
eligible Village Level Workers to the extent of 40 per cent of
the vacancies in the posts.
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Provided that in case of non-availablity of eligible Village
Level Workers, the post remaining unfilled shall be filled up by
direct recruitment."
12. From the aforesaid provision it is revealed clearly that post of
G.P.E.O. and P.A. shall be filled up by direct recruitment and by promotion
from eligible Village Level Worker with proportion of 60:40. Rule-13 of the
G.P.E.O. Rules, 2002 has also specified that a V.L.W. is eligible for
promotion if he has passed High School Certificate Examination with 10
years of experience as V.L.W. and in the event of Scheduled Caste and
Scheduled Tribe the relaxation can be made for two years. From the
aforeaid Rules it appears that when there is promotional avenue and
promotional eligibility has been prescribed by the G.P.E.O. Rules, 2002, it
cannot be said that V.L.W. has no promotional hierarchy at all. On the
other hand, the G.P.E.O.Rules, 2002 having been framed under Article 309
of the Constitution of India have got provisions for promotional avenue to
the post of G.P.E.O. and P.A. We are, therefore, of the view that the V.L.W.
has got promotioal hierarchy in the State cadre having been appointed
under the V.L.W. Rules, 1994 and subsequently amended Rules, 2008.
13. It is revealed from Annexure-2 filed before the Tribunal that on
8.8.2013 the State Government issued a circular whereunder Panchayati
Raj Department has taken G.P.E.O. post/P.A. post as feeder cadre with a
scale of pay of Rs.9,300/- to Rs.34,800/- with Grade Pay of Rs.4,200/- and
it has promotional avenue to A.B.D.O./S.D.P.O. and D.P.O. with Grade Pay
of Rs.4,600/- and Rs.4,800/- respepctively under the same Pay band. By
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reading the V.L.W. Rules, 2008, Rules, 2002 and the Government
Notification dated 8.8.2013, it is clear that the V.L.W. when becomes
G.P.E.O. by promotion, he has got further promotion to A.B.D.O./S.D.P.O.
and D.P.O. But Mr. Sahu, learned Addl. Government Advocate submits that
the V.L.W. in the event of not getting promotion due to any contingency,
can only avail the Grade Pay as attached to their Pay band, because their
Pay band is Rs.5,200/- to Rs.20,400/-. On the other hand Mr. Mohanty,
learned Senior Advocate appearing for opp. Party no.1 repelling such
argument submitted that when there is promotional avenue, the Pay band
attached to new Grade Pay in the promotinal post will be available to opp.
Party no.1.
14. The basic object of the RACP Scheme is to give incentive to the
employees who have not been able to either promotion within certain
years of service. The employees unless are given incentive by way of
financial upgradation, the morale of the employees will be degraded and
the employee will suffer from frustration. Of course, the promotional post
if available, but the employee is not eligible to get the same, the financial
upgradation is uncalled for. It is available from the materials on record that
the earlier TBA principle was available and subsequently the ACPS Scheme
was introduced. The ORSP Rules, 2008 was enacted with a view to revise
the scale of pay in 2008 in terms of Pay band with Grade pay by
converting the then scale of pay under the ORSP Rules, 1998. Earlier scale
of pay was there, but under the ORSP Rules, 2008 the Pay band and Grade
pay were introduced. Thereafter on 6.2.2013 the RACP Schme was
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introduced by revising the years to 10, 20 and 30. The said resolution is
placed below:-
"GOVERNMENT OF ODISHA
FINANCE DEPARTMENT
***
RESOLUTION
No.3560/F _____
Date:06/02/2013
PCC(A)-49/2012
Sub:- Revised Assured Career Progression Scheme (RACPS)
for the State Government Employees.
The State Government considered the
recommendations of the Fitment Committee and granted
Assured Career Progression (ACP) to the State Government
employees on compelition of 15th, 25th and 30th years of
service akin to the Time Bound Advancement (TBA)
provisions of the Orissa Orissa Revised Scales of Pay Rules,
1998. Accordingly, all State Government employees avail
ACP in 3 stages i.e. 1st ACP on completion of 15 years of
service, 2nd ACP after 25 years of 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
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supersession of the provisions of ACP scheme. Consequent
upon implemention of the MACPS by the Government of
India, various Service Associations of the State Government
employees have come up with memoranda to consider
implemention 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 the known as
REVISED ASSURED CAREER PROGRESSION SCHEME
(RACPS).
4. The RACPS is to be effective from 01.01.2013.
5. The details of the RACP Scheme and conditions for
grant of the financial upgradation under the Scheme are
given in Annexure-1.
By order of the Governer
Sd/-
Additional Secretary to Government"
15. Paragraph-10 of Annexure-1 of the RACPS of State Government is
placed below for better appreciation for the purpose of this case:-
"10. Benefit of pay fixation available at the time of
regular promotion shall also be allowed at the time of
financial upgradation under the Scheme, which means the
pay shall be raised by 3% of the total of pay in the Pay Band
and the Grade Pay drawn before such upgradation. The
employees of the cadre having promotional hierarchy will get
the Grade pay of the promotional post. The employees in
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isolated/ex-cadre posts not having any promotional hierarchy
will get the next higher Grade Pay as per the first schedule of
ORSP Rules, 2008 with the interpolations, if any introduced
subsequently. In case the new Grade Pay corresponds to a
different pay Band, the employee will get he Pay Band
corresponding to the revised Grade Pay. There shall, however,
be no further fixation of pay at the time of regular
promotion."
16. From the aforesaid analysis of the RACP of paragraph-10 it is
clear that the pay will be fixed under the ORSP Rules, 2008, but the
modalities for awarding RACP would be given under this Scheme. On clear
harmonious interpretation of paragraph-10 it is found that the employees
of cadre having promotional hierarchy will get Grade pay of the
promotional post and in case the new Grade pay corresponds to a different
Pay band, the employee will get Pay band coresponding to upgraded Grade
pay. Here the learned Addl. Government Advocate drew our attention to a
clarification issued by the State Government in the Finance Department on
20.1.2014 at paragraph-12. According to said paragraph-12 the grade pay
of promotional post which belongs to other cadre shall not be allowed
under RACP Scheme even if the former post being only the feeder post of
that promotional post and the RACP is confined to the cadre only. He
further stated that it has been further clarified in paragraph-12 that such
promotion shall be to an ex-cadre post and the period of service for RACP
on that promotional post shall be recokoned afresh from the date of
joining in that post. Such clarification is absolutely contrary to
paragraph-10 of the RACP Scheme because paragraph-12 has denied
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benefit of RACPS to the employee entitled to promotional avenue under
recruitment Rules, whereas paragraph-10 of RACPS allow same. If
clarification is contrary to scheme, scheme has to be followed. Clarification
has no any legislative value, whereas a scheme being in absence of rule
has got binding effect and to be followed by all in the Administration.
Clarification by State Government has no legal force unless it is converted
to an Act, Rule, Regulation or Scheme or Columinates from such Act,
Rules, Regulation and Scheme. Be that as it may, the scheme is clear that
the RACP is available to an employee having promotional hierarchy. We are
of the view that opp. Party no.1 as V.L.W. being not promoted to the post
of G.P.E.O. and P.A. is entitled to RACP Scheme and as such ORSP Rules,
2008 will be applicable to them. The first schedule of the ORSP Rules,
2008 is depicted below:-
ORISSA REVISED SCALES OF PAY RULES, 2008
FIRST SCHEDULE
[See Rule-3]
Existing Scale of pay under ORSP Rules, 1998 & corresponding revised
scale of pay, 2008 in pay band with grade pay (Relevant portion).
(In Rs.)
(1) (2) (3) (4) (5) (6)
Sl. Existing scale of pay Post/ Name of Revised Scale Revised
No. under ORSP Rules, 1998 Grade Pay Band/ of Pay Grade
Scale Pay
1. 2550-55-2660-3200 S-1 -1s 4440-7440 1300
2. 2610-60-3150-65-3540 S-2 -1s 1440-7440 1400
3. 2650-65-3300-70-4000 S-3 -1s 14440-7440 1650
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4. 2750-70-3800-75-4400 S-4 PB-1 5200-20200 1800
5. 3050-75-3950-80-4590 S-5 PB-1 5200-20200 1900
6. 3200-85-4900 S-6 PB-1 5200-20200 2000
7. 3600-100-5600 S-6A PB-1 5200-20200 2200
8. 4000-100-6000 S-7 PB-1 5200-20200 2400
9. 4500-125-7000 S-8 PB-1 5200-20200 2800
10. 4750-125-7500 S-8A PB-2 9300-34800 4200
17. It has been already discussed above that the new Grade pay of
opp. Party no.1 is V.L.W. in the event of promotion to G.P.E.O. and P.A.
would have been Rs.4,200/- and the same has got new Pay band of
Rs.9,300/- to Rs.34,800/-. When opp. Party no.1 has rendered 15 years of
service and not got promotion due to lack of posts available, he is entitled
to the Grade pay of Rs.4,200/- and the Pay band of Rs.9,300/- to
Rs.34,800/- attached to such Grade pay for G.P.E.O. Not only this, but also
in the event of service for 20 years and 30 years continuously as V.L.W.,
he is entitled to avail the subsequent Grade pay as attached to the Pay
band of Rs.9,300/- to Rs.34,800/- due to lack of vacancies for future
promotions under the relevant RACP Scheme. The issue is answered
accordingly.
CONCLUSION:
18. The relevant portion of the impugned order is as follows:-
" 9. I also note that the Odisha Gram Panchayat
Extension Officers and Progress Assitant's (Method of
Recruitment and Conditions of Service) Rules 2002 (In short
2002 Rules) is only meant for recruitment and service
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conditions of Gram Panchayat Extension Officers. In the
Resolution No.26274 datd 8.8.2013 (Annexure-2) on the
subject of revision of grade pay in certain posts with grade
pay of Rs.4200/- and 4600/-, the Finance Department has
described the post of GPEO/PA as feeder post, ABDO/SDPO
as first promotional post and DPO as second promotional
post, treating those posts belonging to one cadre having
promotional hierarchy, even though there is no provision for
consideration of promotion of GPEO/PAs to the post of
SDPO/ABDO and then to DPO in 2002 Rules. Admittedly
there are separate rules for recruitment to the post of
GPEO/PA and VLWs. As such they are in similar footing as
that of ABDO/SDPO and DPO. Although separate rules
govern the VLW cadre and GPEO cadre, Rules 5 and 13 of
the Odisha Gram Panchayat Extension Officers and Progress
Assitants' (Method of Recruitment and Conditions of
Service) Rules 2002 established hierarchical relationship
between posts of VLW and GPEO/PA as 50% of GPEO/PA
posts are to be filled up by promotion from the level of
VLWs. Hence VLW forms the only feeder cadre for promotion
to GPEO/PA cadre. The VLWs are not eligible to be
considered for promotion to any other post excepting the
post of GPEO/PA as per 2002 Rules. As there is promotional
avenue for VLWs to the post of the GPEO/PA, it canot be
said that posts of VLWs are in isolated/ex-cadre not having
any promotional hierarchy to get next higher Grade Pay as
per the first Schedule of ORSP Rules, 2008.
10. In view of the above, I quash the impugned letter
dated 21.12.2012 (Annexure-3) and hold that the applicants
are eligible to get financial upgradation in the posts of
GPEO/PA, ABDO/SDPO and DPO on completion of 10/20/30
years of service in the post of VLW under the RACP
Scheme."
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After going through the aforesaid order, we are of the view that
there is no illegality found with the order as per discussion made above.
Hence the impugned order is well affirmed.
The writ application is accordingly dismissed.
..................................
Dr. D.P. Choudhury, J
I. Mahanty, J.I agree.
.................................. I. Mahanty, J Orissa High Court, Cuttack Dated the 27th June, 2016/ DNP