Orissa High Court
Pradeep Kumar Mishra vs State Of Odisha on 11 August, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.11155 of 2022
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Pradeep Kumar Mishra Aged about 66 years Son of Late Baishnab Charan Mishra At: Bhagirathi Bihar, B/45, Gudianali, P.O.: Dhenkanal District: Dhenkanal ... Petitioner
-VERSUS-
1. State of Odisha Represented through The Principal Secretary to Agriculture and Farmer Empowerment Department Odisha Secretariat, Bhubaneswar District: Khurda.
2. Director, Horticulture, Bhubaneswar At/P.O.: Bhubaneswar, District: Khordha.
3. Deputy Director, Horticulture Dhenkanal At/P.O./District: Dhenkanal.
4. Assistant Director of Horticulture Kamakhyanagar, At/P.O.: Kamakhyanagar District: Dhenkanal. ... Opposite Parties.
W.P.(C) No.11155 of 2022 Page 1 of 38Counsel appeared for the parties:
For the Petitioner : Mr. Dayananda Mohapatra, Senior Advocate along with M/s. Manas Ranjan Pradhan, Jyotirmay Barik, Pranab Kumar Singh, Advocates For the Opposite parties : Mr. Shantanu Das, Additional Standing Counsel P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 24.07.2025 :: Date of Order : 11.08.2025 O RDER The propriety and legality of revision and re-sanction of pay under the Revised Assured Career Progressing Scheme promulgated under the Odisha Revised Scale of Pay Rules, 2008 vide Letter No.1134/Hort., dated 19.07.2017 issued by the Deputy Director of Horticulture, Dhenkanal and consequent revision of annual increment in Scale of Pay Band-II at Rs.9300/- to 34,800/- with Grade Pay of Rs.4200/- with effect from 01.05.2016 vide Order No.907/Hort., Dated 23.09.2017 passed by the Assistant Director of Horticulture, Kamakhyanagar are questioned in this writ petition filed under Articles 226 and 227 of the Constitution of India, wherein the following prayer(s) are made:W.P.(C) No.11155 of 2022 Page 2 of 38
―The petitioner, therefore, most humbly prays that this Hon'ble Court be graciously pleased to issue rule Nisi calling upon the Opposite Parties to show-cause as to why Annexure-2 & 3 shall not be quashed and as to why the Opp. Parties shall not be directed to quantify the qualifying period of service from the date of joining on 10.09.1979 till date of retirement on 30.11.2016 including the ad-hoc period and as to why the Opp. Parties shall not be directed to extend the pay revision with effect from 01.01.2016 and accordingly to release all consequential benefits including retiral benefits on the basis of last pay drawn as on the date of retirement and interest accrued thereupon;
And if the Opposite Parties fail to show cause or show insufficient cause to make to said rule absolute by issuance of an appropriate writ (s), order (s), direction (s) as this Hon'ble Court may deem fit and proper;
And/or to pass such other order(s), direction(s) as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.
And for which act of kindness the petitioner shall as in duty bound ever pray.‖ Facts:
2. Facts, as adumbrated by the petitioner, reveal that he joined in service on 10.09.1979 as Probation Gardener in the scale of pay of Rs.215-3-233-EB-4-265 per month by Order No.3745, dated 10.09.1979 and continued to receive the sanctioned increment till 30.11.1983. On and from 01.12.1983, being appointed to function as Lower Division Clerk-cum-Typist on ad hoc basis by Office W.P.(C) No.11155 of 2022 Page 3 of 38 Order No.572, 25.11.1983. He worked as Junior Clerk- cum-Typist in officiating post with effect from 01.12.1983. The petitioner was appointed in the post of Junior Clerk-cum-Typist by Office Order No.437, dated 22.05.1985 and joined in the said post on 23.05.1985 on regular basis. He has been allowed annual increments with surrendered leave and earned leave, etc. He was accorded promotion to the post of Senior Clerk on 28.02.2009 and was allowed to retire in the said post on 30.11.2016 on attaining the age of superannuation.
2.1. His last pay drawn was Rs.12,620/- with Grade Pay of Rs.4,600/-. By order dated 23.09.2017, the Assistant Director of Horticulture, Kamakhyanagar reduced the pay to the Pay Band of Rs.11,720/- against Grade Pay of Rs.4,200/-. Accordingly, revision under the Revised Assured Career Progression Scheme (hereinafter referred to as "RACPS") promulgated under the Odisha Revised Scales of Pay Rules, 2008 ("ORSP Rules, 2008", for convenience) has been made at 1st, 2nd and 3rd stages, i.e., on completion of 10, 20 and 30 years of service.
2.2. Though the petitioner sought for supply of reasons, the same was never paid any heed to, which led to submission of a grievance petition dated 30.07.2018 before the Director of Horticulture, Odisha, Bhubaneswar vide Annexure-4. As the same is kept pending without any response from the opposite parties, W.P.(C) No.11155 of 2022 Page 4 of 38 the petitioner has craved to invoke the provisions of Articles 226 and 227 of the Constitution of India of this Court.
Rival contentions and submissions:
3. Sri Dayananda Mohapatra, learned Senior Advocate being assisted by Sri Manas Ranjan Pradhan, learned Advocate taking this Court to entries reflected in the Service Book, submitted that there is no dispute nor can it be disputed that the petitioner entered into the service on 10.09.1979, and accordingly, he completed ten years, twenty years and thirty years as on 10.09.1989, 10.09.1999 and 10.09.2009 respectively.
3.1. He submitted that even though the petitioner was appointed as Probation Gardener as temporary employee, he was given Pay Scale of Rs.215-235-EB-4-
265/- per month, and was also being granted annual increment, sanctioned leave, etc. which admits of no doubt that the petitioner has entered into the Government service on 10.09.1979. Relying on the entries made in the Service Book, it is vehemently submitted that subsequently, the performance of the petitioner being found to be suitable having merit, he has been functioning as Lower Division Clerk-cum- Typist, Junior Clerk-cum-Typist and also Senior Clerk. As the promotion to the post of Senior Clerk was W.P.(C) No.11155 of 2022 Page 5 of 38 accorded to him on 30.11.2016, by the said date, thirty years of Government service had already been crossed/ completed. Therefore, he submitted that the petitioner is entitled to 1st, 2nd and 3rd RACPS.
3.2. Sri Dayananda Mohapatra, learned Senior Advocate opposing the unilateral action of the Assistant Director of Horticulture, Kamakhyanagar in revising the already sanctioned scale(s) of pay in Pay Band-II and annual increment by Order dated 23.09.2017 pursuant to Letter dated 19.07.2017 of the Deputy Director of Horticulture, Dhenkanal submitted that such action not only smacks arbitrariness but also fanciful and capricious.
3.3. He submitted that non-disposal of the grievance petition dated 30.07.2018 is indicative of the fact that the opposite parties-authorities have committed flagrant violation of principles of natural justice affecting the civil consequences adversely and, therefore, he insisted for issue of writ of mandamus to the opposite parties to appropriately fix the pay by taking into consideration the entry into Government service as "10.09.1979" as per Entry No.10 of the Service Book vide Annexure-1. Accordingly, he fervently requested for allowing the prayers made in the writ petition.
W.P.(C) No.11155 of 2022 Page 6 of 383.4. Having referred to the counter affidavit filed by the opposite parties, Sri Dayananda Mohapatra, learned Senior Counsel strongly refuted allegations levelled against the petitioner and put forth his argument that scathing remarks on the conduct of the petitioner and vague allegations levelled against him-- though being satisfied with the performance he was allowed to work as Lower Division Clerk-cum-Typist, Junior Clerk-cum- Typist and also in the promotional post of Senior Clerk before his superannuation-- would reveal that the authorities are hell-bent to deny the petitioner of legitimate dues attune with the RACPS and the attitude of the opposite parties is unwholesome and the approach is unbecoming of an authority who has sworn the counter affidavit without any material to substantiate.
4. On being granted opportunity to file response to the averments and contents of the writ petition, the Assistant Director of Horticulture, opposite party No.4 filed counter affidavit on 15.02.2024 being authorized by opposite party No.2-Director, Horticulture, Bhubaneswar. As if maintenance of the Service Book was within the ken of performance of the duty of the petitioner himself, opposing the date of entry into Government service, it has been affirmed as follows:
"8. That in reply to the averments made in Para-3 of the Writ Petition, it is humbly submitted that, the W.P.(C) No.11155 of 2022 Page 7 of 38 petitioner was appointed as Probationary Gardener (Mali) in Group-D service on ad hoc basis by the Deputy Director of Agriculture, Bolangir on 10.09.1979 and continued up to 06.04.1983 by violating the procedure of ad hoc appointment without any break. Subsequently, he was transferred from the control of the Deputy Director of Agriculture, Bolangir to the control of Horticulturist Patnagarh and joined as such in the same post.
When he was in Gardener post, again he appointed as Jr. Clerk-cum-Typist on ad hoc basis from 11.12.1983 and continued up to 22.05.1985 without any break violating the procedure. Again, the petitioner appointed as Jr. Clerk-cum-Typist on regular basis by the Horticulturist Patnagarh violating the OMS Rules, 1985 (Method of Recruitment to the post of Jr. Clerks in the District Offices) Rules, 1985 and continued up to 30.09.1993 in the same post and in the same establishment. But, the petitioner has availed all the financial benefits on ad hoc appointment such as Increment, Leave Salary and Surrender Leave Salary as a regular Government servant which is not admissible to Government Servant. It is presumed that either he has done intentionally or misguided the concerned authority as he was dealing assistant during the period. Hence, the benefits availed by the petitioner is not authenticated.
12. That in reply to the averments made in Para-8 of Writ Petition, it is humbly submitted that, as the petitioner himself was the Dealing Assistant of the Establishment Section, he is solely responsible to obey and implement the Govt. Rules and regulations. But in this case, it is presumed that either he W.P.(C) No.11155 of 2022 Page 8 of 38 has intentionally done mistake or by misguiding the authority has availed all the financial benefits.
15. That in reply to the averments made in Para-11 of the Writ Petition, it is humbly submitted that, as per RACP Rules, 2013 and as per instruction of the Director of Horticulture, Odisha, Bhubaneswar the pay of the petitioner has been revised. Further it is to mention here that, the petitioner has maintained his own Service Book from the period of entry in to Govt. service till to his retirement, as he was the Dealing Assistant of the Establishment Matter and was the custodian of his Service Book and therefore, all the discrepancies made by him was by manipulating the Govt. Rules and regulations as per his own sweet will. In many places he has tampered his own Service Book, as there is no possibility to see the service book by others. On verification, it is presumed that perhaps he has misguided his authority. After his retirement, the entire irregularities came to the notice and the matter taken to the knowledge of the Director of Horticulture, Odisha, Bhubaneswar after obtaining the legal clarification action taken to regularize his services as it required for smooth preparation of his Pension Paper. But it is the matter of regret that the petitioner is not mentally prepared to accept the truth. In spite of all, the original Service Book along with statement of rectification in the Service Book has been sent to the Director of Horticulture, Odisha, Bhubaneswar vide letter No.360/ Hort. Dt.16.02.2018 of the DDH, Dhenkanal for scrutiny and for issuance of suitable instruction for further W.P.(C) No.11155 of 2022 Page 9 of 38 action. But, till today no action has been taken by the Director of Horticulture, Odisha, Bhubaneswar and the Service Book is not returned.‖ 4.1. Having not been able to demonstrate with evidence or material on record to counter attack the argument of Sri Dayananda Mohapatra, learned Senior Counsel with respect to aforesaid remarks against the petitioner, laying stress on Letter No.4ENG(H-3)16/2014-3/14369/ Hort., dated 16.11.2016 of Administrative Officer issued from the Office of the Director of Horticulture, Odisha, Bhubaneswar to the Deputy Director of Horticulture, Dhenkanal, it is arduously submitted by Sri Shantanu Das, learned Additional Standing Counsel appearing for the opposite parties that being initially appointed as Probationary Gardener and thereafter in the post of Lower Division Clerk/Junior Clerk on ad hoc basis with effect from 10.09.1979 to 22.05.1985, but regularized with effect from 23.05.1985 in the post of Junior Clerk- cum-Typist, the entry into Government service of the petitioner for all practical purposes ought to be taken as 23.05.1985. Therefore, the pay as sanctioned to the petitioner being found to be erroneous though such error continued till his retirement, the authorities are competent to revise the same and fix his pay appropriately. Since the error could be perceived at a later stage after his retirement, proper calculation was made and the pay has been revised.
W.P.(C) No.11155 of 2022 Page 10 of 384.2. A valiant attempt was made by Sri Shantanu Das, learned Additional Standing Counsel to urge that the date of entry into Government service could not have been treated to be "10.09.1979" as claimed by the petitioner, rather the effective date of regularization, i.e., "23.05.1985" in the post of Junior Clerk-cum-Typist is the relevant date for the purpose of computation of benefits emanating from the RACPS under the ORSP Rules, 2008. He submitted that Letter dated 19.07.2017 of the Deputy Director of Horticulture, Dhenkanal (Annexure-C/4 of the counter affidavit) and Order dated 23.09.2017 of the Assistant Director of Horticulture, Kamakhyanagar (Annexure-3) are in conformity with the said Scheme, and the same may not need any interference by this Court since the Authorities have recomputed the fixation of pay and annual increment taking into account effective date as "23.05.1985".
5. In reply, Sri Dayananda Mohapatra, learned Senior Advocate supplemented by laying emphasis on paragraph-6 of the Rejoinder Affidavit filed by the petitioner and contended that the approach of the opposite parties is misconceived and misdirected, inasmuch as no rationality is attached to the contents of counter affidavit. Repelling the arguments advanced by the learned Additional Standing Counsel with reference to the contents of the counter affidavit, the learned W.P.(C) No.11155 of 2022 Page 11 of 38 Senior Counsel demonstrated that the counter affidavit as drafted and filed is not in consonance with the entries made in the Service Book. He was vociferous in his argument that the opposite parties could not have made illogical aspersions on the petitioner and the allegation of manipulation of Service Book at his behest is unfounded. False assertions in the affidavits on behalf of the opposite parties are required to be addressed to sternly. Casual drafting of counter affidavit goes to show the lethargic and lackadaisical attitude of the opposite parties only to thwart legitimate payments to the petitioner.
5.1. The opposite parties have not disputed the date of engagement of the petitioner as "Gardener" on 10.09.1979. Therefore, the action of the Authorities is not above reproach in avoiding grant of pay scale at appropriate pay band and grade pay in terms of entitlement envisaged under the RACPS.
Hearing
6. Since the petitioner got retired in the year 2016 from Government service and at this age of around 69 years seeks fixation/refixation of pay so as to appropriately be granted with pensionary benefits, this matter is taken up for final hearing on the consent of the counsel for the respective parties as the pleadings are complete.
W.P.(C) No.11155 of 2022 Page 12 of 386.1. After arguments were advanced by counsel for both sides, hearing was concluded. The matter was kept reserved for preparation and pronouncement of judgment.
Discussions:
7. Perusal of record relating to duplicate copy of Service Book (vide Annexure-1), reveals that:
―*** *** ***
10. Date of entry in
Government Service - Dt.10.9.79 F.N.‖
7.1. To ascertain the veracity of allegation against the petitioner by way of counter affidavit, at the outset this Court ventures to examine the scope and involvement of the petitioner in manipulating the Service Book. On a query from the Bench during the course of hearing, Sri Shantanu Das, learned Additional Standing Counsel fairly conceded that no material is available on record to affirm such fact. It is not disputed and denied by the learned Additional Standing Counsel that the maintenance of Service Book is the domain of the employer, but not the petitioner-employee. It is also conceded that there was no scope for an employee, like the petitioner, to have any scope to tamper with the original Service Book.
W.P.(C) No.11155 of 2022 Page 13 of 387.2. Though it is alleged by way of counter affidavit, no adverse material is placed on record by the opposite parties to impeach such document (the Service Book), which is placed on record (Annexure-1 enclosed to the writ petition). Therefore, such entries in the Service Book cannot be said to be incorrect and there was no occasion for the petitioner to manipulate. In the counter affidavit mere averments have been made asserting that the petitioner has intentionally misguided and misdirected the authorities to enter the date of entry in Government service as "10.09.1979". However, the learned Additional Standing Counsel could not justify such statement made by the Assistant Director of Horticulture in the counter affidavit.
7.3. Under the above circumstances, this Court holds that the allegation against the petitioner in the counter affidavit filed by the opposite parties is unfounded and unsubstantiated. Such mischievous statement on the part of the opposite parties is unwholesome, as it is admitted by the learned Additional Standing Counsel that the maintenance and custody of the Service Book remained with the employer. However, since the petitioner is at the age of around 68-69 years seeking for fixation of his pension appropriately, leaving such aspect there, this Court now proceeds to discuss the merit of the case.
W.P.(C) No.11155 of 2022 Page 14 of 388. Sri Dayananda Mohapatra, learned Senior Advocate put forth his argument by referring to paragraphs-8, 12 and 15 of the counter affidavit (extracted hereinabove in verbatim) submitted that by way of affidavit opposite party No.4-Assistant Director of Horticulture, Kamakhyanagar used the words „presumed‟, „intentional‟, „misguided‟ and „tampered‟, and contended that when it is conceded that for making entries in the Service Book the petitioner had no role, there is no iota of evidence brought on record by the said authority, opposite party No.4, to evince that the petitioner had "misdirected", "misguided" or "tampered" the entry in the Service Book.
8.1. This Court finds force in the argument of the learned Senior Counsel and therefore, it is perceived that there is no doubt that the entry "10.09.1979" as reflected in the Service Book against serial No.10 with the Heading "Date of entry in Government Service" is correct depiction of fact.
8.2. With that perspective, when the present case is examined, this Court is one with the submission of Sri Dayanananda Mohapatra, learned Senior Advocate that the petitioner has completed 10, 20 and 30 years of service from the date of entry as on 10.09.1989, 10.09.1999 and 10.09.2009 respectively.
W.P.(C) No.11155 of 2022 Page 15 of 388.3. It is manifest from the record that the petitioner was initially appointed as Probation Gardener in pay scale of Rs.215-3-233-EB-4-265 per month by Order No.3745, dated 10.09.1979 which was verified with reference to "pay acquittance roles and found correct". This fact is certified by the Project Officer (Horticulture), Balangir in the Service Book. The said Service Book establishes the fact that he was accorded sanction to receive annual increments. Thereafter he was posted as Lower Division Clerk-cum-Typist on ad hoc basic and subsequently regularized in the post of Junior Clerk-cum-Typist and retired in the promotional post of Senior Clerk.
8.4. With respect to counting the period of service in ad hoc engagement and probation, in V. Vincent Velankanni Vrs. Union of India, (2024) 10 SCR 126 the observations run thus:
―30. It is a well-settled proposition that once an incumbent is appointed to a post according to the rules, his seniority has to be reckoned from the date of the initial appointment and not according to the date of confirmation, unless the rules provide otherwise.
31. In the case of L. Chandrakishore Singh Vrs. State of Manipur and Others, (1999) Supp. 3 SCR 323 = (1999) 8 SCC 287 this Court held that in cases of probationary or officiating appointments which are followed by a confirmation, unless a contrary rule is shown, the services rendered W.P.(C) No.11155 of 2022 Page 16 of 38 as the officiating appointment or on probation cannot be ignored while reckoning the length of service for determining the position in the seniority list. This view has been reiterated in the case of Ajit Kumar Rath Vrs. State of Orissa and Others, (1999) Supp.4 SCR 302 = (1999) 9 SCC 596.
32. The Constitution Bench of this Court in Direct Recruit Class II Engg Officers' Assn. Vrs. State of Maharashtra, (1990) 2 SCR 900 = (1990) 2 SCC 715 stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was held that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
33. This Court summarised the legal principles with regard to the determination of seniority in Pawan Pratap Singh and Others Vrs. Reevan Singh and Others, (2011) 2 SCR 831 = (2011) 3 SCC 267 in the following terms:
‗45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.W.P.(C) No.11155 of 2022 Page 17 of 38
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned
from the date of occurrence of the
vacancy and cannot be given
retrospectively unless it is so
expressly provided by the relevant
service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
34. Thus, it is trite that when an employee completes the probation period and is confirmed in service albeit with some delay, W.P.(C) No.11155 of 2022 Page 18 of 38 the confirmation in service shall relate back to the date of the initial appointment. Any departure from this principle in the form of statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India.
***
45. This Court has time and again dealt with the effect of altering the seniority list at a belated stage and how it may adversely affect the employees whose seniority and rank has been determined in the meantime. In this connection, reference may be made to Malcom Lawrence Cecil D'Souza v. Union of India and Others, (1976) 1 SCC 599 wherein this Court held that:
‗9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years. *** Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.' W.P.(C) No.11155 of 2022 Page 19 of 38
46. In R.S. Makashi and Others Vrs. I.M. Menon, (1982) 2 SCR 69 = (1982) 1 SCC 379 this Court observed as follows:
‗33. *** We must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. ***'
47. In K.R. Mudgal and Others Vrs. R.P. Singh and Others, (1986) 3 SCR 993 = (1986) 4 SCC 531 this Court observed in the following terms:
‗2. *** A Government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity.'
48. In B.S. Bajwa and Another Vrs. State of Punjab and Others, (1997) Supp.6 SCR 451 = (1998) 2 SCC 523 this Court held that the seniority list should not be reopened after a lapse of reasonable period as it would disturb the settled position which is unjustifiable. The relevant extract is as follows:
‗7. *** It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable W.P.(C) No.11155 of 2022 Page 20 of 38 period because that results in disturbing the settled position which is not justifiable.***' ***‖ 8.5. Taking cue from the above statement of law as propounded by the Hon‟ble Supreme Court of India, when the initial appointment of the petitioner is considered as 10.09.1979 and the pay as granted to him on completion of 10, 20 and 30 years of service from the entry into the Government service, the same should not be disturbed after his superannuation with effect from 30.11.2016.
8.6. By way of counter affidavit the opposite parties have not brought on record any extant statutory Rules contrary to what has been exposited in the above said judgment(s).
However, this Court notices the following provisions contained in the Odisha Civil Services (Pension) Rules, 1992:
―14. Counting of service on contract.--
(1) A person who is initially engaged by the Government on a contract basis for a specified period and is subsequently appointed to the same or another post in a temporary or substantive capacity in a pensionable establishment without interruption of duty, may opt either--
(a) to retain the Government contribution in the contributory provident fund with interest thereon including any other compensation for that service; or W.P.(C) No.11155 of 2022 Page 21 of 38
(b) to agree to refund to the Government the monetary benefits referred to in clause (a) or to forgo the same if they have not been paid to him and count in lieu thereof the service for which the aforesaid monetary benefits paid or have become payable.
(2) The option under sub-rule (1) shall be communicated to the Appointing Authority under intimation to the Accounts officer within a period of three months from the date of issue of the order of transfer to pensionable service or if the Government servant is on leave on that day, within three months of his return from leave.
(3) If no communication is received by the Appointing Authority within the period referred to in sub-rule (2), the Government servant shall be deemed to have opted for the retention of the monetary benefits payable or paid to him on account of service rendered on contract.
19. Counting of service on Probation.--
Service on probation against a post if followed by regular appointment in the same or another post shall qualify for pension.
24. Counting of periods spent on training.--
The Government may, by order, decide whether the time spent by a Government servant under training (including a person under training immediately before appointment under Government) shall count as qualifying service.‖ W.P.(C) No.11155 of 2022 Page 22 of 38 8.7. In this connection, the following observation of the Hon‟ble Supreme Court of India rendered in S.D. Jayaprakash Vrs. Union of India, 2025 SCC OnLine SC 973 may be worthy of taking note of:
―8. This rule1 fell for consideration and interpretation in State of Himachal Pradesh Vrs. Sheela Devi, (2023) SCC OnLine SC 1272, where this Court held that although Rule 2(g) of the Pension Rules excludes contractual employees from their application, Rule 17 applies once such contractual employee is regularised on a later date. The effect is that upon regularisation, the Pension Rules become applicable and Rule 17 requires that past service as a contractual employee is to be taken into account for calculating pension. In this light, and considering that Rule 17 requires the regularised employee to exercise an option to either retain the Government's contribution to Contributory Provident Fund, or to refund such amount or forgo the same if they have not been paid in lieu of counting the service period for which such benefits may have been payable, this Court in Sheela Devi (supra) issued the following directions:
‗11. In view of the above reasoning, this court is of the opinion that there is no merit in the appeal however, the following directions are issued:
(i) The State shall take immediate steps to indicate the mode and manner of exercising option by all the employees concerned (who had been regularized 1 Rule 17 of the Central Civil Services (Pension) Rules, 1972 is pari materia with Rule 14 of the Odisha Civil Services (Pension) Rules, 1992.W.P.(C) No.11155 of 2022 Page 23 of 38
after spells of contractual employment) regardless of the dates on which they were engaged i.e. prior to the year 2003 or subsequently, within a time frame, of within eight weeks from today.
(ii) After receiving the options within the time indicated in the notice, the concerned employee(s) who exercise the relevant options should be notified about the amounts they would have to remit in case any amount towards contribution is required, clearly.
(iii) The options should be processed and completed within eight weeks from the last date of receiving options.
(iv) Time limit for payment too should be indicated and entire process should be completed within four months and all orders fixing pensions or family pension as the case may be, shall be issued.'
9. In light of the clear language of Rule 17 of the Pension Rules as well as its interpretation in Sheela Devi (supra), the contractual service period rendered prior to the appellants' regularisation in 2015 must be counted towards the payment of their pensionary benefits in accordance with the mechanism set out in Rule 17. In line with the directions issued in Sheela Devi (supra) extracted hereinabove, we direct the respondent-Union of India to take immediate steps and indicate the mode and manner for the appellants to exercise the option provided under Rule 17 of the Pension Rules as well as to notify the amounts that the appellants would have to remit in case they opt for grant of pension under the Rules.‖ W.P.(C) No.11155 of 2022 Page 24 of 38 8.8. The conspectus of the above would lead to consider that the petitioner, though was appointed in the post of Junior Clerk-cum-Typist on 23.05.1985 on regular basis, being appointed as Lower Division Clerk-cum-Typist on ad hoc basis by virtue of Office Order No.572, dated 25.11.1983 and got promotion to the Senior Clerk on 28.02.2009, his past service period as "probation", "temporary", "officiating" and/or "ad hoc" cannot be said to have been obliterated. Hence, as reflected in the Service Book the date "10.09.1979" reflected against Serial No.10 is to be reckoned as the date of entry into Government service.
CONCLUSION & DECISION:
9. The unsubstantiated allegations against the petitioner as made in the counter affidavit that he was instrumental for reflecting the date of entry into Government service as 10.09.1979 is liable to be discarded. This Court takes into account the submissions of the learned Additional Standing Counsel in this regard that the petitioner has no active or tacit role in maintaining the Service Book. It is the competent authority/employer who is responsible for making entries in the Service Book and rightful custody of the original Service Book. No contrary entry being shown by the learned Additional Standing Counsel, the entries in the copy of duplicate Service Book as furnished to this Court by way of affidavit in the W.P.(C) No.11155 of 2022 Page 25 of 38 writ petition vide Annexure-1 is considered to be true and correct.
9.1. This Court in appreciation of the entries made in Service Book by the predecessors-in-office of the present incumbent, who were instrumental for making entries in the Service Book, and such entries being taken into consideration by the competent authorities his performance since 1979 to 2016 was judged in proper perspective, and the petitioner appears to have been accorded promotion to the post of Senior Clerk in the year 2016. Thus being fact, the petitioner could not be in any way be said by way of counter affidavit for the first time before this Court in reply to contents of the writ petition that he had the occasion to misguide/misdirect or manipulate the entries in Service Book during his service tenure from 1979 till 2016. Not a single scrap of paper is available or adduced as evidence by the opposite parties by way of affidavit to show that the petitioner has ever influenced or misguided any of the authorities in maintenance of Service Book and was involved in alleged manipulation.
9.2. It may be worthwhile to take note of following uncontroverted reply/objection as contained in the rejoinder affidavit filed by the petitioner in connection with allegations made in the counter affidavit:W.P.(C) No.11155 of 2022 Page 26 of 38
―6. That in reply to the averments made in paragraph 7 to 9 to the counter, it is humbly submitted that the opposite parties admitted about the engagement of the petitioner as Probationary Gardener on 10.09.1979 in a regular post till 06.04.1983.
Presently objections are raised about his appointment made contrary to the procedure. The opposite party also admitted about the transfer of the petitioner and his appointment as a Junior Clerk- cum-Typist on ad hoc basis from 11.12.1983 and continuing on ad hoc basis till 22.05.1985 without any break violating the procedure. It is submitted that this allegation made after more than 33 years are not sustainable and merits no consideration That apart, his regularization in the post was formal because of the fact he was also continuing as regular employee and getting the increment on approval of the higher authorities. The opposite party admitted about the petitioner to have received the increment admissible to Government servant but then the petitioner is put of unnecessary allegation on presumptions that he has done it intentionally get it misguiding the concerned authority as he was dealing assistant during the period. The office having a Dealing Assistant dealing with establishment is also to deal with his personal file and is nothing new or extraneous which the petitioner has discharged. There is no dispute that the authority sanctioned the increment keeping their eye and ear open and then raising such dispute on technical and flimsy ground without any foundation and basis, is not sustainable and merits no consideration.
W.P.(C) No.11155 of 2022 Page 27 of 38The Government is treated as an ideal employer and it cannot behave the employee particularly the retired employee for the reasons not attributable to him and that to after 25 years of the benefits extended. In view of the aforesaid, the contentions of the opposite parties in this regard is nothing but deliberate attempt to harass the petitioner so as to deprived him the legitimate benefits while those have been extended since 1979 and 1983, i.e., 40 years before. Accordingly, the contentions made in these paragraphs of the counter merits no consideration and such contentions are stoutly denied.
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8. That in reply to the averments made in paragraph 15 to 18 to the counter, it is humbly submitted that the opposite parties reiterated the self-same allegation concerning the petitioner holding the post of clerk and dealing with his file though at no point of time such contention raised while he was in job. Besides, he is not the sanctioning authority of such benefits due to employee. It is unfortunate to submit that the petitioner is blamed to have got the things done, though the records reveals about sanction of the benefit(s) by a top level officer in the cadre of Deputy Director and disbursement made by concerned Authority till retirement of the petitioner.
That apart, there is no allegation of any manipulation by the petitioner at any time nor is borne out of the document referred to except the allegation made against the petitioner on surmises and presumption only. The petitioner should not be subjected to unnecessary harassment on the basis W.P.(C) No.11155 of 2022 Page 28 of 38 of such speculative allegations against him which is not substantiated with materials but based mere surmises and conjecture. Accordingly, those contentions in these paragraphs of the counter are stoutly denied.‖ 9.3. Against such denial, nothing is brought on record to repel any of assertions made by the petitioner. Allegations made in the counter affidavit by the opposite parties against the employee after his retirement for the purpose of denying his legitimate dues without any evidence is inappropriate, illogical and in absence of any foundational factual evidence on record are inacceptable. Such uncorroborated contents put forth by the opposite parties are liable to be brushed aside having no bearing on the adjudication of present case.
9.4. Having thus the scenario as emanating from the documents forming part of record, the date of entry into Government service of the petitioner is taken as "10.09.1979". This Court, bearing in mind the legal perspective discussed in the foregoing paragraphs, is of the opinion that the petitioner is entitled to the benefits envisioned in the provisions of the RACPS under the ORSP Rules, 2008, having completed 10, 20 and 30 years of service as on 10.09.1989, 10.09.1999 and 10.09.2009 respectively.
W.P.(C) No.11155 of 2022 Page 29 of 389.5. The above view finds support from the following observation made in State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839:
―36. 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 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 Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510, 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 W.P.(C) No.11155 of 2022 Page 30 of 38 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.‖ 9.6. In the case of Susanta Kumar Dash Vrs. State of Odisha, W.P.(C) No.18142 of 2020, this Court vide Judgment rendered on 22.09.2023, made the following observation, while deciding the question whether an employee having got promotion to the higher rank with higher Grade Pay, can again be eligible to get RACPS:
―24. 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 W.P.(C) No.11155 of 2022 Page 31 of 38 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 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.) Vrs. 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) 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 W.P.(C) No.11155 of 2022 Page 32 of 38 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 Vrs. 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 Vrs. 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 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 Article 14 of the Constitution which mandates that unequals cannot be treated as equals.
29. In State Bank of India Vrs. 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. Vrs. 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 W.P.(C) No.11155 of 2022 Page 33 of 38 should be determined by expert bodies like the Pay Commission. 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 Vrs. 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 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.' W.P.(C) No.11155 of 2022 Page 34 of 38 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 in 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.' 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 W.P.(C) No.11155 of 2022 Page 35 of 38 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 Vrs. 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) 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.‖ 9.7. After discussing broad contours of RACPS, this Court in the said case of Susanta Kumar Dash (supra) came to hold as follows:
―38. Needless to say, since the petitioner has already availed the benefit of RACP and in fact the same has W.P.(C) No.11155 of 2022 Page 36 of 38 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.‖ 9.8. This Court, having discussed the gamut of the RACPS under the ORSP Rules, 2008, in Renuka Dei Vrs. State of Odisha, 2025 SCC OnLine Ori 2978, does not feel it apposite to reiterate the perspective by burdening this Judgment. Suffice to say, regard be had to the observations made with respect to the entitlement of benefits of pay for fixing/refixing as envisaged under the RACPS under above Rules, 2008.
10. Since it is brought to the notice of this Court that after issue of Letter No.1134/Hort., dated 19.07.2017 W.P.(C) No.11155 of 2022 Page 37 of 38 (Annexure-2) and Order No.907/Hort. Dated 23.09.2017 (Annexure-3), the petitioner has made grievance petition dated 30.07.2018 (Annexure-4) before the Director of Horticulture, Bhubaneswar (opposite party No.2) and the same is said to have been pending for consideration of appropriate modification of pay attune with the provisions of the RACPS under the ORSP Rules, 2008, this Court while setting aside the order in Annexure-3 Signature Not and the observations in Letter under Annexure-2, directs Verified Digitally Signed Signed by: ASWINI KUMAR SETHY opposite party No.2 to consider said grievance petition Designation: Personal Assistant (Secretary-in-Charge) Reason: Authentication pragmatically by taking into account the observations Location: ORISSA HIGH COURT, CUTTACK Date: 11-Aug-2025 19:27:03 made hereinabove.
11. It is hoped and trusted that the entire exercise shall be completed by the competent opposite party within a period of eight weeks from date.
12. In fine, the writ petition stands disposed of along with all pending interlocutory applications, if any, in terms of observations and directions as above, but in the circumstances without any order as to costs.
(MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 11th August, 2025//MRS/Laxmikant W.P.(C) No.11155 of 2022 Page 38 of 38