Orissa High Court
Purusottam Dash vs State Of Odisha And Others .... Opposite ... on 4 December, 2024
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.33947 of 2021, 33948 of 2021, 34559 of 2021, 34986 of
2021, 34988 of 2021, 34990 of 2021, 34992 of 2021, 34994 of 2021, 34996
of 2021, 34998 of 2021, 34999 of 2021, 36077 of 2021, 36079 of 2021 &
37246 of 2021
(Under Articles 226 and 227 of the Constitution of India)
W.P.(C) No.33947/2021
Purusottam Dash .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.33948/2021
Satrughna Sarangi .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34559/2021
Kirtan Bihari Mohanta & Others .... Petitioners
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34986/2021
Santosh Kumar Pani .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34988 of 2021
Satyabrata Sahoo .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.33947 of 2021 & Batch Page 1 of 10
W.P.(C) No.34990 of 2021
Ashok Kumar Sahoo .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34992 of 2021
Ashok Kumar Mohanty .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34994 of 2021
Pradyumna Kumar Mohapatra .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34996 of 2021
Chittaranjan Chhotaray .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34998 of 2021
Debendra Kumar Sahoo .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.34999 of 2021
Sashikanta Panigrahi .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.33947 of 2021 & Batch Page 2 of 10
W.P.(C) No.36077 of 2021
Dillip Kumar Mishra .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.36079 of 2021
Dr. Kari Benu Gopal Patro .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
W.P.(C) No.37246 of 2021
Chittaranajn Sethi .... Petitioner
-versus-
State of Odisha and Another .... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioners : Mr.Nihal Rath, Advocate
Mr.Surya Narayan Patnaik, Advocate
(In all writ petitions)
Dr.J.K.Lenka, Advocate
Mr.S.Jyotiprakash, Advocate
Mr.P.K.Behera, Advocate
Mr.S.K.Routray, Advocate
(In W.P.(C) No.34559 of 2021)
For Opposite Parties : Mr. D. Mohanty, AGA
(In all the writ petitions)
W.P.(C) No.33947 of 2021 & Batch Page 3 of 10
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
4th December 2024 B.P. Routray, J.
1. Heard Mr. Rath, and Mr.Routray, learned counsel for the Petitioners and Mr.Mohanty, learned Additional Government Advocate for the State.
2. All the Petitioners being served as Senior Tassar Assistants have prayed for similar relief based on similar set of facts and more particularly, the impugned order is common in respect of all the Petitioners. As such, all the writ petitions are heard together and disposed of by this common judgment.
3. The Petitioners were initially appointed as Field Assistants under Director of Textiles (Opposite Party No.2). Subsequently, their posts of 'Field Assistant' were redesignated as 'Sr. Tassar Assistant' as per the Orissa Revised Scale of Pay Rules, 1985 (ORSP Rules). It is mentioned in said ORSP Rules, 1985 that those Field Assistants, who are Science Graduates and have undergone prescribed training, to be redesignated as Sr. Tassar Assistant upon completion of two years of service. Pursuant to said Rules, all the Petitioners were redesignated as Sr. Tassar Assistant from the date of respective completion of two years of service in the revised scale of pay of Rs.935-1530/-
It needs to be mentioned here that the scale of pay prescribed for Field Assistant is Rs.320-550/-. After coming into force of Revised Career Progression Scheme (RACPS) on 06.02.2013, the benefits were W.P.(C) No.33947 of 2021 & Batch Page 4 of 10 counted in favour of the Petitioners for completion of 10, 20 and 30 years of service in the single cadre to revise their pay. As such, they all were granted the benefits of RACP Scheme, 2013 with revision of pay pursuant to order dated 07.10.2016 (Annexure-7) and order dated 31.10.2016 (Annexure-3, in respect of W.P.(C) No.34559 of 2021). Subsequently, based on certain clarifications issued by the Finance Department, the revision of pay granting the benefits of RACP Scheme in favour of the Petitioners were again revised to reduce their pay as per order dated 08.10.2021 under Annexure-12. The same is challenged before this Court in all the writ petitions.
4. Opposite Party No.2 has filed the counter stating that since redesignation of the post of 'Field Assistant' as 'Sr. Tassar' Assistant is carrying higher scale of pay, the benefits counted in favour of the Petitioners pursuant to their completion of 10, 20 and 30 years respectively was needed to be revisited and accordingly, a reduced benefit was given in favour of the Petitioners upon further revision of scale of pay.
5. It is submitted on behalf of the Petitioners that mere redesignation of the post of 'Field Assistant' as 'Sr. Tassar Assistant' does not amount to promotion and therefore, reducing the pay of the Petitioners upon further revision to the earlier revision made pursuant to the RACP Scheme, 2013, is illegal.
6. As seen from the narration of facts, the issue involved herein is that, whether financial up-gradation by way of re-designation of the post of 'Field Assistant' as 'Senior Tassar Assistant' would amount to promotional benefits to debar the employee from getting such financial benefits under the RACP Scheme, 2013 upon completion of 10, 20 and 30 years respectively.
W.P.(C) No.33947 of 2021 & Batch Page 5 of 107. A letter dated 18.06.2019 was issued under Annexure-8 stating that the Field Assistants, who have otherwise been promoted to Sr. Tassar Assistants are not eligible to avail RACP benefits since such promotion/designation is counted as one financial up-gradation as per FD Office Memorandum No.4554 dated 23.02.2016. Therefore, based on such Office Order, the benefits of RACP Scheme earlier granted in favour of the Petitioners was revised to reduce their pay as mentioned under Annexure-12.
8. It is true that RACP Scheme was introduced as a career advancement scheme for the purpose of granting financial up-gradation in absence of promotional avenue to an employee remaining in the same carder. The only reason of withdrawal of benefit of RACP Scheme, as stated by the Authority, is that the Petitioners had availed the financial up-gradation by way of re-designation of their posts as Sr. Tassar Assistant. The Government in Handlooms, Textiles and Handicrafts Department in letter dated 18.06.2019 have referred to the FD Memorandum dated 23.02.2016 to count such benefit as financial up-gradation in favour of the Petitioners.
In a similar issue, the validity of FD Memorandum dated 23rd February 2016 was considered by this Court in W.P.(C) No.18749 of 2018 and Batch, 2021 SCC On Line Ori 1839. It is observed therein as follows:-
"xxx xxx xxx xxx
th
Upon carefully examining the resolution dated 6 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 W.P.(C) No.33947 of 2021 & Batch Page 6 of 10 upgradation which would deny the Opposite Parties the benefit of the RACPs. In order 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."
9. In Bharat Sanchar Nigam Limited v. R. Santhakumari Velusamy (2011) 9 SCC 510, it is stated as follows:-
"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, 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 W.P.(C) No.33947 of 2021 & Batch Page 7 of 10 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 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.
W.P.(C) No.33947 of 2021 & Batch Page 8 of 10(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 benefit of advancement to a higher pay scale, it will be a promotion."
10. In the given facts of the case, since it is a re-designation of post of 'Field Assistant' as 'Sr. Tassar Assistant' in terms of ORSP Rules, 1985 and applicable to everyone, who has completed two years of service having Science qualification, considering the scope of the words 'promotion' and 'up-gradation' as stated above, the same cannot be said as an promotional benefit granted in favour of the Petitioners. Accordingly, the direction of the Authorities to treat the same as a promotional benefit to debar them from getting such benefits under the RACP Scheme, 2013 is found unsustainable in the eye of law.
W.P.(C) No.33947 of 2021 & Batch Page 9 of 1011. Accordingly, the impugned order under Annexure-12 is quashed in respect of present Petitioners and the Opposite Parties are directed to grant the benefit in terms of the earlier pay fixation as per the order dated 07.10.2016 (Annexure-7) and order dated 31.10.2016 (Annexure-3 in W.P.(C) No.34559 of 2021).
12. All the writ petitions are disposed of as allowed.
(B.P. Routray) Judge Himansu/P.A. Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 24-Dec-2024 15:17:29 W.P.(C) No.33947 of 2021 & Batch Page 10 of 10