Orissa High Court
Sri Prasanna Kumar Gochhayat vs State Of Odisha on 30 January, 2025
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.16778 of 2021
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
***
Sri Prasanna Kumar Gochhayat Aged about 56 years Son of Dhuna Chandra Gochhayat at present Tally Clerk, Office of Paradip Mining Office Madhuban O.M.C. Colony, Paradip Resident of, At: Nuadiha P.O.: Mahimadeipur Via: Rahama District: Jagatsinghpur. ... Petitioner.
-VERSUS-
1. State of Odisha Represented through its Secretary to Government, Steel & Mines Department, Secretariat Building, Odisha Bhubaneswar.
2. Director of Mines, Odisha, Bhubaneswar.
3. Deputy Director of Mines, Jajpur Road.
W.P.(C) No.16778 of 2021 Page 1 of 874. Secretary to Government, Finance Department, Secretariat Building, Odisha Bhubaneswar.
5. Paradip Mining Office, Madhuban O.M.C. Colony, Paradip, District: Jagatsinghpur. ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Susanta Kumar Dash, Ananga Kumar Otta, Swetlana Das, Asutosh Sahoo and Prabin Das, Advocates For the Opposite Parties : Ms. Saswata Patnaik, Additional Government Advocate P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 30.08.2024 :: Date of Judgment : 30.01.2025 J UDGMENT MURAHARI SRI RAMAN, J.--
Legality of Office Order No.559/Mines, dated 07.04.2021 issued by the Deputy Director Mines, Jajpur Road Circle, Jajpur Road (Annexure-6) cancelling the financial upgradation extended vide Office Order No.455/Mines, dated 16.03.2017 (1st Revised Assured Career Progression in terms of the W.P.(C) No.16778 of 2021 Page 2 of 87 Odisha Revised Scales of Pay Rules, 2008) with effect from 01.01.2013 and Office Order No.2036/Mines, dated 06.11.2017 (Pay Fixation) and revising the same in pursuance of Letter No. MII(gg)-1/20-- 2472/DM, dated 18.03.2021 (Annexure-4) issued by the Director of Mines, Odisha, being questioned on the touchstone of decisions rendered vide Order dated 03.05.2017 in Additional Chief Secretary to Government and Others Vrs. Sunil Pattanayak and Another, W.P.(C) No.3460 of 2017; and State of Orissa Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, disposed of on 27.08.20161, the petitioner has approached this Court by way of filing this writ petition invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the following prayer(s):
"The petitioner therefore prays that your Lordships may graciously be pleased to quash Annexure-4 & 6 and direct the opposite parties to allow the Grade Pay which was extended to the petitioner under Annexure-2 taking into Annexure-3 and decision of this Hon‟ble Court in W.P.(C) No.2831 of 2016 and W.P.(C) No.3460 of 2017.
And pass such order/directions of this Hon‟ble Court may deem fit and proper.
And for this act of kindness, the petitioner as in duty bound shall ever pray."
1 State of Odisha Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, disposed of by Judgment dated 27.06.2016; reported as State of Odisha Vrs. Bihari Lal, 2016 SCC OnLine Ori 333.
W.P.(C) No.16778 of 2021 Page 3 of 87Facts:
2. The petitioner, initially directed to be appointed as Check Gate Clerk in view of provisions of the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990, vide Letter No.122/XV-a-5/95/DMG, dated 01.01.1996, by virtue of modified Letter bearing No.438/XV-a/6/96/DMG, dated 05.01.1996, was directed by the Director of Mining and Geology to be given appointment to work as "Tally Clerk". Accordingly, he was appointed as "Tally Clerk" in the year 1996 in the Office of the Deputy Director of Mines, Jajpur Road Circle, Jajpur, vide Order No.258/Mines, dated 11.01.1996 with scale of pay Rs.950-20-1150-EB-25-1500, which is reproduced hereunder:
"Office of the Deputy Director Mines :
Jajpur Road Circle : Jajpur Road No.258/Mines. Dated 11.01.1996.
In pursuance of DM.G (O) Letter No.122 dated
02.01.1996 & Letter No.435/DMG(o) dated 05.01.1996, Sri Prasanna Kumar Gochhayat, son of D.C. Gochhayat, Retd. Tally Clerk, Village: Nuadiha, P.O.:
Mahimadeipur, Via: Rahama, District: Jagatsinghpur is hereby appointed as Tally Clerk under the rehabilitation assistance scheme in the scale of pay 950-20-1150-E.E.-25-1500 with usual D.A. as admissible under Rule from time to time.W.P.(C) No.16778 of 2021 Page 4 of 87
The appointment is purely temporary and can be terminated at any time without any notice or assigning any reason thereof.
He should join the office of the under signed within 15 days from the date of issue of this letter failing which the appointment order may be cancelled.
Deputy Director of Mines, Jajpur Road.
Memo No.259/Mines. Dated 11.01.1996.
Copy to Sri Prasanna Kumar Gochhayat, C/o: Dhuna Chandra Gochhayat, Village: Nuadihi, P.O.:
Mahimadeipur, Via: Rahama, District: Jagatsinghpur for information. He is directed to join in the office of the undersigned as per conditions given above. He should submit the following documents at the time or joining positively.***"
2.1. Since the Revised Assured Career Progression Scheme (for short, "the RACP Scheme") came into force with effect from 01.01.2013 by the Government of Odisha in Finance Department vide Memo No.1738-PCC(A)-
37/2013/F dated 20.01.2014 for financial up- gradation of the State Government employees under the RACP's counted from the direct entry grade on completion of 10/20/30 years of service in a single Cadre in absence of promotion, the petitioner was allowed the benefit of 1st RACP with revised pay in Pay Band-1, Rs.5,200/- -- Rs.20,200/- with Grade Pay of Rs.2,800/- with effect from 01.01.2013 vide Office W.P.(C) No.16778 of 2021 Page 5 of 87 Order No.455/Mines, dated 16.03.2017 and 2nd RACP in Pay Band-2, Rs.9,300/- -- Rs.34,800/- with Grade Pay of Rs.4,200/- with effect from 12.01.2016 vide Order No.2036/Mines, dated 06.11.2017 in terms of the Odisha Revised Scales of Pay Rules, 2013 (for convenience, "ORSP Rules, 2013") on completion of 10 years and 20 years of continuous service as on 11.01.2006 and 11.01.2016.
2.2. So far as it related to the present petitioner, the Statement showing the fixation of pay under the RACPS (Annexure-2) is extracted hereunder:
"Statement showing the fixation of pay under ACPS/RACPS of employees of Office of the Deputy Director Mines, Jajpur Road Circle.
Sl Name of the Option Under- Existing Grant of Date of Incremen Re
No. employee exerc- taking Pay Up- Next -tal Pay ma
with ised furni- and gradation Increm- sanction- rks
designation Yes/ shed Grade Pay under ent ned after
No Yes/N ACPS/ up-
o RACPS gradatio
with n
effective
date
1 2 3 4 5 6 7 8 9
** *** *** *** *** *** *** *** ***
3 Sri Yes Pay-8520/- 1st ACPS 01.01. Pay Ne
Prasanna GP-1900 (15 years) 2012 Rs.9170 xt
Kumar as on Pay +GP da
Gochhayat 12.01.2011 Rs.8840 + 1900 in te
(Tally in the Scale GP the of
Clerk) of Pay PB- Rs.1900 Scale of Inc
1, w.e.f Pay PB- re
5200/2020 01.01.2011 1, 5200- me
0 GP-1900. in the Scale 20200 nt
of Pay PB1, GP 01.
5200- 1900 01.
W.P.(C) No.16778 of 2021 Page 6 of 87
20200 GP- 20
Rs.1900 13
01.01. Pay -
2013 Rs.9510
+ GP
1900 in
the
Scale of
Pay PB-
1, 5200-
20200
GP
1900
1st RACPs 01.01. Pay Ne
(10 years) 2014 Rs.9880 xt
Pay + GP da
Rs.9510+G 2800 in te
P Rs.2800 the of
w.e.f. Scale of inc
01.01.2013 Pay PB- re
in the Scale 1, 5200- me
of Pay PB1, 20200 nt
5200- GP 01.
20200 GP 2800 01.
Rs.2800 w.e.f.01 20
.01.201 15
4
01.01. Increme -
2015 nt of
Pay
Rs.1026
0+ GP
2800 in
the
Scale of
Pay PB-
1, 5200-
20200/-
GP-
2800/-
2nd RACPs 12.01. - -
(20 years) 2017
Pay
Rs.10660+
GP
Rs.4200
w.e.f.
12.01.2016
in the Scale
of Pay PB2,
9300-
W.P.(C) No.16778 of 2021 Page 7 of 87
34800 GP-
Rs.4200
** *** *** *** *** *** *** *** ***
2.3. An information being sought for under the Right to Information Act, 2005, with respect to promotional avenues available for "Check Gate Clerk"/"Tally Clerk", the following data have been supplied by the Public Information Officer-Directorate of Mines, Odisha, Bhubaneswar, vide Letter No.4930/DM, dated 26.05.2014 (Annexure-3):
"In absence of approved Cadre Rules, the Check Gate Clerk/ Tally Clerk have been considered for promotion to the posts of Weigh Bridge Supervisor and Weigh Bridge Supervisors to the post of Transport Supervisor.
Current Scale of Pay:
1. Weigh Bridge Supervisor PB-1 Rs.5,200/- --
Rs.20,000/- GP Rs.2,800/-
2. Transport Supervisor PB-2 Rs.9,300/- --
Rs.34,800/- GP Rs.4,200/-"
2.4. Notwithstanding such information being provided way back in the year 2014, the Director of Mines, Odisha, Bhubaneswar vide Letter No. MII (gg)-1/20/2472/DM, dated 18.03.2021 (Annexure-4) instructed subordinates to cancel previous orders following Paragraph 18 of the Finance Department Resolution W.P.(C) No.16778 of 2021 Page 8 of 87 No.3560/F., dated 06.02.2013 while allowing the RACP to the employees up to 31.12.2015 and Rule 13 of the Odisha Revised Scales of Pay Rules, 2017 ("ORSP Rules, 2017", for brevity) on or after 01.01.2016. The said Letter dated 18.03.2021 reads as under:
"Directorate of Mines, Odisha, Bhubaneswar No.MII (gg)-1/20/2472/DM., Dated 18.03.2021 From Debidutta Biswal, IFS, Director of Mines, Odisha, Bhubaneswar.
To The Joint Director of Mines, Joda The Deputy Director of Mines, Koira/Rourkela/Talcher/Koraput/ Sambalpur/Jajpur Road The Mining Officer, Baripada/Bhawanipatna/Phulbani/ Keonjhar/Balangir/Cuttack/Berhampur Sub.: Strict adherence and implementation of Finance Department Resolution No., Orders & clarifications while sanctioning RACPs in favour of District level Ex-cadre posts of Check Gate Clerks & Tally Clerks under your administrative control.
Sir, With reference to the captioned subject, it is observed that while allowing financial up-gradations in favour of W.P.(C) No.16778 of 2021 Page 9 of 87 District Cadre (ex-cadre) posts of Check Gate Clerks & Tally Clerks etc., you have not adhered into the guidelines of Finance Department issued from time to time such as Resolution No.3560/F, dated 06.02.2013, Clarification No.1738/GF., dt.20.01.2014 & Resolution No.1417/F., dated 17.01.2015 to avoid stagnation in the both Cadre & Ex-Cadre posts scrupulously. You have allowed RACPs/MACPs to the Check Gate Clerks and Tally Clerks presuming the same as cadre based, which is irregular.
The post of Tally Clerk/CGC/Weigh Bridge Supervisor as well as Transport Supervisor are still remaining as ex-cadre. Further filling of the post of Weigh Bridge Supervisor and Transport Supervisor are coming under the purview of Director of Mines as per prevailing practice.
In general terms, it is an admitted fact that there is no bar to consider promotion from an ex-cadre post to another ex-cadre post basing on fulfilment of criteria after being decided, and the employee can be allowed promotion as per Finance Department Resolution No.1417/F., dated 17.01.2015.
The post of Check Gate Clerk/Tally Clerk/Weigh Bridge Supervisor and Transport Supervisor are not hierarchically one above other allowing the employee concerned to go for such posts on promotion because the post of Check Gate Clerk/Tally Clerk are not coming under Recruitment Rules to be treated as Cadre posts. The RACP Rule emphasizes on Cadre only, i.e., through Recruitment Rules. The benefit under the Scheme shall be permissible on the basis of the W.P.(C) No.16778 of 2021 Page 10 of 87 promotional post available in Cadre/Recruitment Rules, otherwise the same shall be treated as an isolated post and the RACP benefits of the employee appointed on the above recruitment post shall be determined in terms of Finance Department Resolution No.1417/F., dated 17.01.2015.
After examining the Service Books of Tally Clerks and Check Gate Clerks it is noticed by the Audit that financial upgradations allowed by the Circle Heads are in violation of the Finance Department Guidelines mentioned in the foregoing paragraph which should be rectified as follows immediately in a rational way.
Starting After completion After completion After completion
Check Gage of 10 years of of 20 years of of 30 years of
Clerk / Tally uninterrupted uninterrupted uninterrupted
Clerk service service service
GP- Rs.1,900 GP Rs.2,000 GP Rs.2,200 GP Rs.2,400
(Pre-revised
Scale of Pay)
Hence you are directed to cancel the previous order (allowing the same as Cadre based) and to allow RACP to the above extent immediately and compliance be reported by 7th April, 2021 at the latest.
While considering the above, Rule 18 of Finance Department Resolution No.3560/F., dated 06.02.2013 should be followed strictly while allowing the same in favour of the employees up to 31st December, 2015 and the incumbents those have due to get the benefits on or after 01.01.2016 should be followed as per sub-rule (v) of Rule 13 of ORSP Rules, 2017.
Accordingly, the Original Service Books of the employees concerned of respective Circle Offices as W.P.(C) No.16778 of 2021 Page 11 of 87 detailed below are returned herewith for further compliance at your end.
*** *** *** ***
13. Sri Prasanna Ku. Gochhayat, Tally Clerk O/o. DDM, Jajpur Road *** *** *** *** This may be treated as "most urgent"
Encl. As above Yours faithfully
Director of Mines, Odisha"
2.5. Objecting to such action, the petitioner had
approached this Court by way of filing writ petition, being W.P.(C) No.12411 of 2021, which was disposed of on 05.04.2021 with the following order:
"*** This writ petition involves the following prayer:
„The petitioner therefore prays that your lordships may graciously be pleased to quash Annexure-4 taking into Annexure-3 and direct the Opp. Parties to allow the Grade Pay which was extended to the petitioner under Annexure-
2. And pass such order/directions as this Hon‟ble Court may deem fit and proper. And for this act of kindness, the petitioner as in duty bound shall ever pray.‟ In his challenge to Annexure-4, Sri Pati, learned counsel for the petitioner contended that the direction contained in Annexure-4 so far it relates to petitioner clearly opposes the decision of the authority at Annexure-3, at pages 13 and 14, where similarly situated persons being benefited with higher Grade Pay. It is in this view of the matter and as a decision is required to be taken by the opposite party no.2, this writ petition stands disposed of with a direction to the opposite party no.2 to W.P.(C) No.16778 of 2021 Page 12 of 87 treat the writ petition as an objective to Annexure-4 so far it relates to petitioner and take decision as appropriate involving the petitioner and also taking into consideration the development through Annexure-2 within a period of ten weeks from the date of communication of this order along with copy of this writ petition by the petitioner.
Till a decision is taken, in the event Annexure-4 has not been given effect to, the same may not be given effect to."
2.6. The Deputy Director of Mines, Jajpur Road Circle, Jajpur vide Office Order No.559/Mines, dated 07.04.2021 cancelled the Office Order dated 16.03.2017 (1st RACP) and 06.11.2017 (Pay fixation) with effect from 01.01.2013 and downgraded the Grade Pay of Rs.4,600/- to Rs.2,200/- under Annxure-6. The relevant portion of said Order so far as relevant for the present petitioner reads as follows:
"Office of the Deputy Director of Mines, Jajpur Road Circle, Jajpur Road Office Order No.559/Mines Dated 07.04.2021 In pursuance of Letter No. MII (gg) 1/20-2472/DM, dated 18.03.2021 of Director of Mines, Odisha, Bhubaneswar the financial up-gradations extended to the Check Gate Clerks and Tally Clerks are hereby cancelled and revised the following manner.
*** W.P.(C) No.16778 of 2021 Page 13 of 87
6. Sri Prasanna Kumar Gochhayat, Tally Clerk The financial up-gradation extended in Sri Prasanna Kumar Gochhayat, Tally Clerk vide this Office Order No.455/Mines, Dated 16.03.2017 (1st RACPs) and Order No.2036/Mines Dated 06.11.2017 (pay fixation) is cancelled and revised w.e.f.01.01.2013.
01.01.2013 Pay Rs.9510/- 1st RACPS under
+G.P.2000/- Rule 13(2) of ORSP
Rules, 2008
01.01.2014 Pay Rs.9860/- + Increment
G.P.2000/-
01.01.2015 Pay Rs.10,220/- G.P. Increment
Rs.2000/-
01.01.2016 Pay Rs.10,590/- + Increment
G.P.Rs.2000/-
01.01.2016 Pay Rs.33,000/- ORSP Rules, 2017
Level-5, Cell-15
12.01.2016 Pay Rs.33,700/- 2nd RACPS under
Level-6, Cell-13 Rule 13(2) of ORSP
Rules, 2008
01.01.2017 Pay Rs.34,700/- Increment
Level-6, Cell-14
01.01.2018 Pay Rs.35,700/- Increment
Level-6, Cell-15
01.01.2019 Pay Rs.36,800/- Increment
Level-6, Cell-16
01.01.2020 Pay Rs.37,900/- Increment
Level-6, Cell-17
01.01.2021 Pay Rs.39,000/- Increment
Level-6, Cell-18
***
W.P.(C) No.16778 of 2021 Page 14 of 87
Deputy Director, Mines
Jajpur Road Circle,
Jajpur Road"
2.7. Dissatisfied thereby, the petitioner approached this Court by filing the instant writ petition to invoke power of judicial review under Articles 226 and 227 of the Constitution of India to restore the pay as earlier fixed by the Mining Department.
Counter affidavit of the opposite party Nos.1, 2 and 3:
3. In reply to the contents of the writ petition, the opposite parties sought to explain that during course of audit of Original Service Book of some retired Check Gate Clerks/Tally Clerks while verifying the authenticity of pay fixation for determining their pay for finalization of their retirement benefits, certain irregularities were noticed and found that the Mining Officers/Deputy Directors of Mines have allowed them higher Grade Pay taking the post of Weigh Bridge Supervisor and Transport Supervisor having Grade Pay of Rs.2,800/- and Rs. 4,200/- respectively, as the promotional post of Check Gate Clerk/Tally Clerk. In the instant case the petitioner was allowed Grade Pay of Rs.2,800/- and Rs.4,200/- with effect from 01.01.2013 and 12.01.2016 respectively as he had completed 10 years and 20 years of continuous W.P.(C) No.16778 of 2021 Page 15 of 87 services on 11.01.2006 and 11.01.2016 respectively as per the Revised Advanced Career Progression Scheme ("RACPS", for short) under the ORSP Rules, 2013 with effect from 01.01.2013.
3.1. The post of Check Gate Clerk/Tally Clerk is a district level posts and there exists no Cadre Rules. Concerned Authorities at Circle Offices are the Appointing Authorities. Since the petitioner has held the isolated/ex-Cadre post not having any promotional hierarchy and is eligible to get the next higher Grade Pay as per the 1st Schedule of the ORSP Rules, 2008 with the interpolations, if any, introduced subsequently.
3.2. It is a fact that earlier one Sri Anam Charana Behera Check Gate Clerk had been considered for promotion to the post of Weigh Bridge Supervisor during the year 1992 and subsequently he was promoted to the post of Transport Supervisor during the 2001. Records revealed that no such criteria have been framed while considering the promotion for the above post.
Similarly, there is absence of Cadre Rules for promotion to the aforementioned ex-Cadre post. No promotion has been given to Weigh Bridge Supervisor or Transport Supervisor from the post of Check Gate Clerk/Tally Clerk since then as these posts are not in W.P.(C) No.16778 of 2021 Page 16 of 87 hierarchical structure of the Cadre. The posts of Weigh Bridge Supervisor and the Transport Supervisor are separate ex-Cadre posts to Check Gate Clerks/Tally Clerk.
3.3. The Deputy Director of Mines, Jajpur Road, by considering as if the petitioner's post of Check Gate Clerks/Tally Clerk has hierarchical promotional avenue, i.e., from Check Gate Clerks/Tally Clerk to Weighbridge Supervisor and next above, i.e., Transport Supervisor whose Grade Pay is Rs.2,800/- and Rs.4,200/- respectively, has sanctioned Grade Pay of Rs.2,800/- and Rs.4,200/-on completion of 10 years and 20 years of service respectively.
3.4. It is further asserted that since the post of Check Gate Clerk/Tally Clerk does not come under any Recruitment Rules, Point No.13 of Clarification vide Finance Department Memo No.1738-- PCC(A)-37/ 2013/F., dated 20.01.2014 can be adhered to for the purpose of determining the Grade Pay. Taking into above facts into consideration, the Director of Mines, Odisha vide Letter No.2472/DM, dated 18.03.2021 has instructed all the Circle Offices to revise the pay of all the Check Gate Clerks/Tally Clerks including the petitioner, working under their administrative control with Grade Pay of Rs.2,000/-, Rs.2,200/- and W.P.(C) No.16778 of 2021 Page 17 of 87 Rs.2,400/- instead of Rs.2,800/-, Rs.4200/- and Rs.4,600/- on completion of 10, 20 and 30 years of service respectively. Accordingly, the Deputy Director, Mines, Jajpur Road vide Officer Order No.559/Mines, dated 07.04.2021 (Annexure-6) has cancelled the earlier Order dated 16.03.2017 and revised the pay with effect from 01.01.2013 so far as 1st RACPS is concerned and with effect from 12.01.2016 so far as 2nd RACPS is concerned with Grade Pay and MACP as admissible under ORSP Rules, 2017.
3.5. It is reaffirming that the post of Check Gate Clerk/Tally Clerk is not a Cadre post, and the post of Weigh Bridge Supervisor and Transport Supervisor to which one Sri Anam Charana Behera Check Gate Clerk was promoted did not have approved Cadre. As such, consideration of benefit of RACPS construing the same to be the promotional post would not have any justification.
3.6. The Director of Mines, Odisha in the information supplied under the Right to Information Act, 2005 stated that there is absence of approved Cadre Rules for the posts of Tally Clerk/Check Gate Clerk. Though the post of Check Gate Clerk has prospect of promotion to the post of Weigh Bridge Supervisor and Transport Supervisor, these posts are also not W.P.(C) No.16778 of 2021 Page 18 of 87 governed by any approved Cadre Rules. Hence, the posts are ex-Cadre posts. So, extension of benefit of RACPS to the Check Gate Clerks in the promotional post is not applicable. Hence, it is asserted by the opposite parties that the Order of Director of Mines, Odisha dated 18.03.2021 directing to cancel the previous orders allowing RACP and revise the Grade Pay as per Finance Department Notification is in conformity with law.
Hearing:
4. As the pleadings are completed, on consent of counsel for both the sides, this matter is taken up for final hearing at the stage of admission.
4.1. Heard Mr. Susanta Kumar Dash, learned Advocate for the petitioner and Smt. Saswata Patnaik, learned Additional Government Advocate for the opposite parties.
Rival contentions and submissions:
5. Sri Susanta Kumar Dash, learned counsel appearing for the petitioner, placing the factual details of the matter, submitted that as per RACPS contained in Finance Department Resolution dated 06.02.2013, three financial up-gradations were to be allowed to the employees on completion of 10/20/30 years of service W.P.(C) No.16778 of 2021 Page 19 of 87 in a single post/Cadre. Since the petitioner served in the said post since 12.01.1996 without any promotion, he had appropriately been considered entitled for RACPS under the ORSP Rules, 2008. Citing Paragraph 10 of the ORSP Rules, 2013, the 1st RACPS granted under the ORSP Rules, 2008 has been taken away wrongly at the instruction of the Director of Mines.
5.1. He further submitted that the Grade Pays attached to the post of the Weigh Bridge Supervisor and the Transport Supervisor are Rs.2,800/- and Rs.4,200/- respectively. Since Tally Clerk (ex-Cadre) has promotional posts, viz., the Weigh Bridge Supervisor and the Transport Supervisor, the Mines Department having accepted this position granted RACPS to the petitioner, but later on they have cancelled such grant and reduced the amount of RACP in the Grade Pay of Tally Clerk. Such action of the opposite parties being violative of provisions the Rule 14 of the ORSP Rules, 2008 cannot withstand judicial scrutiny.
5.2. Sri Susanta Kumar Dash, learned Advocate has placed heavy reliance on Order dated 03.05.2017 passed in Additional Chief Secretary to Government and Others Vrs. Sunil Pattanayak and another, W.P.(C) No.3460 of 2017, wherein the Judgment of this Court State of Orissa Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, W.P.(C) No.16778 of 2021 Page 20 of 87 disposed of on 27.08.2016, was followed in the context of cancellation of already granted RACPS in respect of ex-Cadre employee.
5.3. By amplifying further he would submit that in the case of Sunil Pattanayak (supra) after serving the Department for thirty years, the petitioner was denied 3rd RACP as the Cadre Rules of Industrial Promotion Officer do not envisage promotional hierarchy. Under the above situation, the learned Odisha Administrative Tribunal considered entitlement of 3rd RACP in favour of the employee and held that the post of Industrial Promotion Officer is not an ex-Cadre/isolated post because of availability of promotional avenue and hierarchical structure being prescribed in terms of Rule 7 of the Odisha Industrial Service Rules, 1985. Said view of the learned Odisha Administrative Tribunal was carried to this Court in W.P.(C) No.3460 of 2017, which stood undisturbed vide Order dated 03.05.2017.
5.4. He also submitted that Paragraph 10 of the RACPS vide Finance Department Resolution dated 06.02.2013, being beneficial in character and aims at according financial incentives/upgradation in the event of stagnation in promotion, it is not intended to discriminate a category or group of Government W.P.(C) No.16778 of 2021 Page 21 of 87 employees. Therefore, he would urge that Finance Department Clarification can be read as if it is supplementary to the RACPS, but not supplant of said Resolution. It is forcefully argued by Sri Susanta Kumar Dash, learned Advocate that the petitioner deserves to get the RACPS benefit of the Grade Pay attached to the Weigh Bridge Supervisor and the Transport Supervisor.
5.5. Since the contention and the claim were not taken care of by the opposite parties in proper perspective in consonance with the direction of this Court vide Order dated 05.04.2021 passed in W.P.(C) No.12411 of 2021, the petitioner has sought for appreciation of factual matrix and render a decision in tune with Sunil Pattanayak Vrs. Additional Chief Secretary to Government, W.P.(C) No.3460 of 2017, vide Order dated 03.05.2017 following the Judgment dated 27.06.2016 rendered in the case of State of Odisha Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016.
6. Smt. Saswata Patnaik, learned Additional Government Advocate contesting the arguments advanced by Sri Susanta Kumar Dash, learned Advocate for the petitioner made valiant attempt to justify the decision of the Director of Mines vide Letter dated 18.03.2021 W.P.(C) No.16778 of 2021 Page 22 of 87 and consequential step taken by the Deputy Director of Mines vide Office Order dated 07.04.2021.
6.1. While seeking to distinguish the decisions rendered in the cases of Sunil Pattanayak Vrs. Additional Chief Secretary to Government, W.P.(C) No.3460 of 2017, vide Order dated 03.05.2017 and State of Odisha Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, vide Judgment dated 27.06.2016, she contended that the petitioner, Tally Clerk, an ex-Cadre post, cannot be extended the benefit of RACPS under the ORSP Rules, 2008 and the ORSP Rules, 2013. The Deputy Director of Mines has rightfully adhered to the instructions imparted by the Director of Mines by revising the Grade Pay appropriately as the posts of the Weigh Bridge Supervisor and the Transport Supervisor are not the promotional posts of Check Gate Clerk/Tally Clerk.
6.2. With her usual vehemence, Smt. Saswata Patnaik urged that as per Point No.13 of the Clarification issued by the Finance Department vide Memo No.1738, dated 20.01.2014, the petitioner, Tally Clerk could not be considered for the promotion to the post of the Weigh Bridge Supervisor or the Transport Supervisor. Therefore, the re-fixation of pay of the W.P.(C) No.16778 of 2021 Page 23 of 87 petitioner in the Pay Band and the Grade Pay appropriately cannot be said to be arbitrary or illegal.
6.3. Relying on Point No.13 of the Finance Department Clarification in Memorandum No.1738, dated 20.01.2014, she submitted that the RACPS under the ORSP Rules, 2008 is the benefit extended to the employees having appointment to a post under a Cadre and "a Cadre means a post for which a specific Recruitment Rule is framed". Since the post of Check Gate Clerk/Tally Clerk is a district level ex-Cadre post and not governed by any Cadre Rules, the benefit of RACPS in the promotional post is not applicable. Therefore, the Director of Mines, Odisha vide Order dated 18.03.2021 directed to cancel the previous Orders granting RACP erroneously and accordingly, the Deputy Director of Mines has revised the Pay Scale with Grade Pay appropriately under the RACPS taking into consideration the completion of years of service.
6.4. Smt. Saswata Patnaik, learned Additional Government Advocate referred to Paragraph 10 of Resolution dated 06.02.2013 and sought to rely on Point No.13 of the Finance Department Clarification vide Memo dated 20.01.2014, to contend that it is unequivocally provided that the RACPS for the State Government employees is attracted in respect of "employees of the W.P.(C) No.16778 of 2021 Page 24 of 87 Cadre having promotional hierarchy". Reiterating what has already urged, she strenuously argued that the petitioner, Tally Clerk, working against ex-Cadre post having no promotional avenue, has been denied the benefit of RACPS for justified reason, which warrants no interference.
7. Opposing the arguments advanced by Smt. Saswata Patnaik, learned Additional Government Advocate and to buttress his contentions, Sri Susanta Kumar Dash, learned counsel appearing for the petitioner drew attention of this Court to Serial No.7 of the Finance Department Clarification vide Memo dated 20.01.2014. that since the post of Daftary/Zamadar is "always filled up by Class-IV employees on promotion only and there is no direct appointment to the post of Daftary/Zamadar, this post is considered as a Cadre post of Class-IV post in absence of any Cadre Rule" the benefit of RACPS has been allowed under the ORSP Rules, 2008. Therefore, it is submitted by learned counsel for the petitioner that parity with Anam Charana Behera, who was given the hierarchy of Weigh Bridge Supervisor and Transport Supervisor, be maintained. At different times, the Mines Department could not take different stance and treat the petitioner with discrimination on the specious plea of absence of approved Cadre Rules.
W.P.(C) No.16778 of 2021 Page 25 of 877.1. Sri Susanta Kumar Dash, learned Advocate, thus, refuting the contentions of Smt. Saswata Patnaik, learned Additional Government Advocate, laid emphasis that the petitioner, Tally Clerk, should not have been treated differently and the benefit of RACPS as has already been extended could not have been cancelled retrospectively.
Analysis and discussions:
8. It is not in dispute that:
(a) The petitioner is appointed as "Tally Clerk" in the year 1996 in scale of pay of Rs.950-20-1150-
E.B.-25-1500 with usual D.A.
(b) The entitlement for RACPS is available to Government employees on completion of 10, 20 and 30 years of service.
(c) As per information provided by the Director of Mines as Public Information Officer under the Right to Information Act, 2005, it is unambiguous that in absence of Cadre Rules, the post of the Transport Supervisor is considered as promotional post of the Weigh Bridge Supervisor and the Weigh Bridge Supervisor is the promotional avenue for the Check Gate Clerk/the Tally Clerk.
W.P.(C) No.16778 of 2021 Page 26 of 87(d) Though at paragraph 4(f) of the counter affidavit it has been asserted that no promotion has been given to the Weigh Bridge Supervisor or the Transport Supervisor from the post Check Gate Clerk/Tally Clerk, as these posts are not in hierarchical structure of the Cadre and the Weigh Bridge Supervisor and the Transport Supervisor are separate ex-Cadre posts of Check Gate Clerk/ Tally Clerk, it has been conceded at Paragraph 4(g) of said counter affidavit that "the post of Weigh Bridge Supervisor and Transport Supervisor to which an incumbent (Sri Anam Charana Behera Check Gate Clerk) was promoted does not have approved Cadre Rules."
9. The Odisha Revised Scales of Pay Rules, 2008 has been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India with effect from 01.01.2006.
9.1. The provisions of Rules 2, 3 and 4 of the ORSP Rules, 2008, stand as follows:
"2. Application.--
(1) Save as otherwise provided by or under these Rules, these rules shall apply to all persons in whole time employment of Government.
(2) These Rules shall not apply to--W.P.(C) No.16778 of 2021 Page 27 of 87
(i) persons engaged by Government on contract basis except when the contract provides otherwise;
(ii) persons re-employed in Government service after retirement;
(iii) persons paid out of contingencies;
(iv) persons paid otherwise than on a monthly basis including those paid only on piece-rate basis;
(v) persons not drawing pay in regular scales of pay for whom no revised scales of pay are prescribed;
(vi) employees borne in the "Work-charged Establishment" as defined in the Resolution of Government in the erstwhile Political and Services Department No.9488 dated the 18th June 1974;
(vii) employees governed by the Orissa Revised Scales of Pay (for College Teachers) Rules, 1978, the Orissa Revised Scales of Pay (for Medical College Teachers) Rules, 1982, the Orissa Revised Scales of Pay (for College Teachers) Rules, 1989, the Orissa Revised 21 Scales of Pay (for Medical College Teachers) Rules,1989, the Orissa Revised Scales of pay (for College Teachers) Rules,2001, the Orissa Revised Scales of Pay (for Medical College Teachers) Rules, 2001, the Orissa Revised Scales of Pay (for Engineering College Teachers) Rules, 2001, W.P.(C) No.16778 of 2021 Page 28 of 87 the Orissa Superior Judicial Service Rules,1963, the Orissa Judicial Service Rules, 1994, the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 read with Finance Department Resolution No.23598/F dated 3.06.2003 revising the scales of pay for the Judicial Officer of the subordinate Judiciary service in the State of Orissa as per the recommendations of Justice Shetty Commission;
(viii) persons not in whole time employment under Government of Orissa;
(ix) any other Class or category of persons whom the Governor may by order specifically exclude from the operation of all or any of the provisions contained in these Rules.
3. Definitions.--
In these rules, unless the context otherwise requires,--
(1) (i) "existing basic pay" means pay drawn in the prescribed existing scale of pay, including stagnation increment(s), personal pay granted due to fixation of pay under sub rule (d) of Rule 74 of the Orissa Service Code including the cases where reduceable personal pay has been granted to protect the total emoluments on account of loss of special pay, advance increments granted, if any but does not include any W.P.(C) No.16778 of 2021 Page 29 of 87 other type of pay like "special pay", etc.;
(ii) "existing scale" in relation to a Government servant means the present scale applicable to the post held by the Government servant (or, as the case may be, any personal scale of pay applicable to him/her) as on the 1st day of January, 2006 in a substantive or temporary capacity:
Provided that in the case of Government servant who, on the 1st day of January 2006 was on deputation, leave, foreign service or training or who would have on that date continued in one or more lower posts but for his officiating in a higher post, "existing scale" means the scale of pay applicable to the post which he would have held but for his being on such deputation, leave, foreign service or training as the case may be, but for his officiating in a higher post;
(2) (i) "existing emoluments" means the sum of--
(i) existing basic pay,
(ii) dearness pay appropriate to the
basic pay and
(iii) dearness allowance appropriate to the basic pay + dearness pay at Index average 536(1982=100);W.P.(C) No.16778 of 2021 Page 30 of 87
(ii) "present scale" in relation to any post/grade specified in Column 2 of the First Schedule means the scale of pay specified against that post in column 5 thereof;
(iii) "pay in the pay band" means pay drawn in the running pay bands specified in column 5 of the First Schedule;
(iv) "Grade Pay" is the fixed amount corresponding to the pre revised pay scales/posts as specified in column 6 of the First Schedule;
(v) "revised pay structure" in relation to any post specified in column 3 of the First Schedule means the pay band and Grade Pay specified against that post or the pay scale specified in column 5 and 6 thereof, unless a different revised pay band and Grade Pay or pay scale is notified separately for that post;
(vi) "basic pay" in the revised pay structure means the pay drawn in the prescribed pay band plus the applicable Grade Pay but does not include any other type of pay like special pay, etc.;
(vii) "revised emoluments" means the pay in the pay band plus Grade Pay of a Government servant in the revised pay structure;W.P.(C) No.16778 of 2021 Page 31 of 87
(viii) "Schedule" means Schedule annexed to these Rules;
(5) "Pay" means the pay as defined in clause (i) of sub-rule (a) of Rule 33 of the Orissa Service Code in the existing scale and shall include--
(i) ad hoc increment granted in the shape of personal pay on account of stagnation at the maximum of the existing scale;
(ii) Personal pay granted due to fixation of pay under sub-rule (d) of Rule 74 of the Orissa Service Code, including the case where reduceable personal pay has been granted to protect the total emoluments on account of loss of special pay;
(iii) advance increment (s) granted, if any;
NOTE--
A list of existing scale of pay and their corresponding Pay band/revised pay structure is appended to the First Schedule to these rules.
4. Scale of Pay.--
The revised pay structure with the pay band, pay scale and Grade Pay as applicable, corresponding to the existing scale of every post/grade specified in Column (2) of the First Schedule shall be as specified against it in Column (5) and (6) thereof."
9.2. Division Bench of this Court in the case of Susanta Kumar Dash Vrs. State of Odisha, W.P.(C) No.18142 of 2020, vide Judgment dated 22.09.2023 has analysed W.P.(C) No.16778 of 2021 Page 32 of 87 the position of "pay" vis-à-vis the provisions contained in the Odisha Service Code with particular reference to the RACPS in the following manner:
"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 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.W.P.(C) No.16778 of 2021 Page 33 of 87
9. In B.S. Jadav Vrs. 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 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 Vrs. 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 Shamrao Vishnu Parulekar Vrs. 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:
(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 Vrs. State of Maharashtra, AIR 1985 SC 1655, the apex Court held that a public servant is an authority who W.P.(C) No.16778 of 2021 Page 34 of 87 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
(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 W.P.(C) No.16778 of 2021 Page 35 of 87 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 Vrs. 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.‟
16. In N.D.P. Namboodripad Vrs. 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 W.P.(C) No.16778 of 2021 Page 36 of 87
(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, ChapterIV 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.‟
18. In Bombay Dyeing and Manufacturing Co. Vrs.
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:
W.P.(C) No.16778 of 2021 Page 37 of 87"(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 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 accrued:
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 with effect from 28.05.1987 vide Finance Department Notification No. 22836/F. dated 26.05.1987.]
(d) Where a Government servant is appointed to another post which does not involve W.P.(C) No.16778 of 2021 Page 38 of 87 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 than his pay 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 re-
employment 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 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 W.P.(C) No.16778 of 2021 Page 39 of 87 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 re-fixed from the date of such enhancement, where such re-fixation is to his advantage provided that the pay so re-fixed 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:
„1. Authority competent to fix the pay:W.P.(C) No.16778 of 2021 Page 40 of 87
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 W.P.(C) No.16778 of 2021 Page 41 of 87 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., dated 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 Rule 74(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 re-
fixed 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 W.P.(C) No.16778 of 2021 Page 42 of 87 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 occasion available under the third proviso to Rule 74(d) of Orissa Service code will not be applicable where option is exercised for re-fixation 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 W.P.(C) No.16778 of 2021 Page 43 of 87 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 with effect from 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 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 with effect from 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 W.P.(C) No.16778 of 2021 Page 44 of 87 service, if they continue in one post/grade. The benefit of ACP will be given only after 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 with effect from 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 (RACPS) for the State Government Employees, which reads as follows:
*** 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 W.P.(C) No.16778 of 2021 Page 45 of 87 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 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 with effect from 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."
9.3. On the recommendations of Fitment Committee, the State Government employees are granted Assured Career Progression ("ACP", for short) on completion of W.P.(C) No.16778 of 2021 Page 46 of 87 15, 25 and 30 years of service akin to the Time Bound Advancement ("TBA", for short) as per provisions of the Odisha Revised Scales of Pay Rules, 1998. Such provision was revised by the Finance Department Resolution dated 06.02.2013 granting three financial upgradation under the Revised Assured Career Progression Scheme ("RACPS", for convenience) on completion of 10, 20 and 30 years.
9.4. The Finance Department Resolution whereby the RACPS has been introduced with effect from 01.01.2013 reads as under:
"Government of Odisha Finance Department RESOLUTION No.3560/F/PCC(A)-49/2012 Date: 06.02.2013 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 completion of 15th, 25th and 30th years of service akin to the Time Bound Advancement (TBA) provisions of the 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 W.P.(C) No.16778 of 2021 Page 47 of 87 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.
5. The details of the RACP Scheme and conditions for grant of the financial up-gradation under the Scheme are given in Annexure-1.
By order of the Governor Sd/-
Additional Secretary to Government W.P.(C) No.16778 of 2021 Page 48 of 87 REVISED ASSURED CAREER PROGRESSION SCHEME (RACPS):
1. There shall be three financial upgradations 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.
2. 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.
3. There shall be a Screening Committee to decide the eligibility of the persons for upgradation under RACPS. The Screening Committee shall follow a time schedule and meet twice in a financial year, preferably in the first week of January and first week of July every year for advance processing of the cases maturing in that half year. Accordingly, cases maturing during the first-half i.e. April to September of a particular financial year shall be taken up for consideration by the Committee in the first week of January. Similarly, the Screening Committee meeting in the first week of July shall process the cases that would be maturing during W.P.(C) No.16778 of 2021 Page 49 of 87 the second-half i.e. October to March of the same financial year.
4. RACPS shall be permissible in case of those employees only after regulation of their pay under O.R.S.P. Rules, 2008. On introduction of RACPS, the ACP Scheme as under O.R.S.P. Rules, 2008 shall cease to operate.
5. The manner of fixation of pay on promotion shall be applicable while fixing the pay under RACPS.
An employee can opt to get the pay fixed under RACPS after accrual of his next increment in existing Pay Band with Grade Pay within one month from the date of issue of RACPS order in his/her favour in the proforma appended as Fourth Schedule of O.R.S.P. Rules, 2008; else the pay of the employee shall be fixed from the date of effect of RACP. The next increment due shall be 12 months from the date of such fixation.
6. On grant of financial upgradation under the Scheme, there shall be no change in the designation, classification or status. However, financial and certain other benefits which are linked to the pay drawn by an employee such as HBA, allotment of Government accommodation may be permitted.
7. Financial upgradation under the RACPS shall be purely personal to the employee and shall have no relevance to his position of seniority in the grade. As such, there shall be no stepping up of pay/antedation of increment between Senior and Junior after regulation of pay under RACPS.
W.P.(C) No.16778 of 2021 Page 50 of 878. The Pay Band PB-3 of Rs.15,600-39,100/- with Grade Pay of Rs.5400/- being the Group-A Entry Grade Pay Band shall not be allowed under RACPS to an employee in Pay Band PB-2. For example, if an employee in the Pay Band PB-2 i.e. Rs.9,300-34,800/- with Grade Pay of Rs.4600/- gets financial upgradation under RACPS, he shall be entitled to get his/her pay fixed in the Pay Band PB-2 i.e. Rs.9,300-34,800/- with Grade Pay of Rs.5400/- instead of Pay Band PB-3 i.e. Rs.15,600-39,100/- with Grade Pay of Rs.5400/-.
9. There shall be no further financial upgradation under RACPS, if an employee has already availed three financial upgradations by way of RACPS/Promotion.
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 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 the Pay Band corresponding to the revised Grade Pay. There shall, however, be no further fixation of pay at the time of regular promotion.
W.P.(C) No.16778 of 2021 Page 51 of 8711. The RACPS shall also be applicable to work charged employees, only if their service conditions are comparable with the staff of regular establishment.
12. The RACPS is directly applicable only to State Government employees. It will not get automatically extended to employees of State PSUs/Autonomous/Statutory Bodies under the administrative control of a Department. Keeping in view the financial implications involved, a conscious decision in this regard shall have to be taken by the respective Government Body/ Board of Directors as well as the Administrative Department concerned and wherever it is proposed to adopt the RACPS, prior concurrence of Financial Department shall be obtained.
13. If a financial upgradation under the RACPS is not allowed after 10 years in a Grade Pay and is deferred for the reason an employee being unfit or due to departmental proceedings, his case will be reviewed in subsequent years. In the matter of disciplinary/penal proceedings, grant of benefit under the RACPS shall be subject to rules / guidelines governing normal promotion. Such cases shall, therefore, be regulated under the provisions of the OCS (CCA) Rules, 1962 and instructions issued thereunder.
14. The RACPS contemplates mere placement on personal basis in the Grade Pay and pay scale of the higher post and shall not amount to actual functional promotion of the employees concerned. Therefore, no reservation orders/roster shall apply W.P.(C) No.16778 of 2021 Page 52 of 87 to the RACPS. However, as usual the rules of reservation in promotion shall be ensured at the time of regular promotion. For this reason, it may not be mandatory to associate members of SC/ST in the Screening Committee meant to consider cases for grant of financial upgradation under the Scheme.
15. Pay drawn in the Pay Band and the Grade Pay allowed under the RACPS shall be the basis for determining the terminal benefits in respect of the retiring employee.
16. If a regular promotion in due course is refused by the employee before becoming entitled to a financial upgradation, then there shall be no financial upgradation under RACPS as the employee has not been stagnated due to lack of promotional opportunities. If, however, financial upgradation has been allowed due to stagnation and the employee refuses the subsequent promotion, it shall not be a ground to withdraw the financial upgradation. He shall, however, not be eligible to be considered for further financial upgradation till he agrees to be considered for promotion again and the next financial upgradation shall also be deferred to the extent of period of debarment due to such refusal.
17. Employees on deputation need not revert to the parent Department for availing the benefit of financial upgradation under the RACPS. They may exercise a fresh option to draw the pay in the Pay Band and the Grade Pay of the post held by them or the pay plus Grade Pay admissible to them W.P.(C) No.16778 of 2021 Page 53 of 87 under the RACPS, whichever is beneficial like the regular employee in the parent cadre had they not been deputed.
18. Assured Career Progression (ACP) availed under ORSP Rules, 2008 shall not be taken into account while considering the RACPS in favour of an employee. But, no pay fixation shall be allowed by extending the benefit of 3% of basic pay and Grade Pay to the existing Pay but only the Grade Pay as applicable shall be allowed while giving RACPS.
Sd/-
Additional Secretary"
10. The legal position regarding the distinction between upgradation and promotion is well settled.
10.1. In Union of India Vrs. Pushpa Rani, (2008) 9 SCC 24, the Supreme Court of India had examined and explained the difference thus:
"In legal parlance, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment. The word „promotion‟ means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only W.P.(C) No.16778 of 2021 Page 54 of 87 covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word „promotion‟ has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post."
10.2. The decision in Union of India Vrs. Pushpa Rani, (2008) 9 SCC 24 was discussed in Bharat Sanchar Nigam Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 and the ruling has been enunciated as under:
"In Pushpa Rani, (2008) 9 SCC 242, this Court while considering a scheme contained in the Letter dated 09.10.2003 held that it provided for a restructuring exercise resulting in creation of additional posts in most of the cadres and there was a conscious decision to fill up such posts by promotion from all eligible and suitable employees and, therefore, it was a case of promotion and, consequently, the reservation rules were applicable."
10.3. It has been set forth in Bharat Sanchar Nigam Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 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 W.P.(C) No.16778 of 2021 Page 55 of 87 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 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, W.P.(C) No.16778 of 2021 Page 56 of 87 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, upgradation 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 W.P.(C) No.16778 of 2021 Page 57 of 87 is therefore a promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation."
10.4. See also, Rama Nand Vrs. Chief Secretary, Government of NCT of Delhi, (2020) 6 SCR 19 = 2020 (II) OLR (SC) 487, where it has been observed as follows:
"17. The reasons for coming to this conclusion is based on the principles set out in the Bharat Sanchar Nigam Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510. No doubt, sometimes there is a fine distinction which arises in such cases, but, a holistic view has to be taken considering the factual matrix of each case. The consequence of reorganisation of the cadre resulted in not only a mere re-description of the post but also a much higher pay scale being granted to the appellants based on an element of selection criteria. We say so as, at the threshold itself, there is a requirement of a minimum 5 years of service. Thus, all Telephone Operators would not automatically be W.P.(C) No.16778 of 2021 Page 58 of 87 eligible for the new post. Undoubtedly, the financial emoluments, as stated above, are much higher. The third important aspect is that the appellants had to go through the rigorous of a specialised training. All these cannot be stated to be only an exercise of merely re-description or reorganisation of the cadre. On applying the test in BSNL case (supra), as per sub-para (i) of paragraph 29, promotion may include an advancement to a higher pay scale without moving to a different post. In the present case, there is a re-description of the post based on higher pay scale and a specialised training. It is not a case covered by sub-para (iii), as canvassed by learned counsel for the appellants, where the higher pay scale is available to everyone who satisfies the eligibility condition without undergoing any process of selection. The training and the benchmark of 5 years of service itself involve an element of selection process. Similarly, it is not as if the requirement is only a minimum of 5 years of service by itself, so as to cover it under sub-para
(iv).
18. We have already observed that the complete factual contours of the difference between the two posts would have to be examined in the given factual situation and the triple criteria of minimum 5 years of service, a specialised training and much higher financial emoluments leaves us in no manner of doubt. What was done has to be considered as a promotion disentitling the appellants to the benefits of the ACP Scheme.
As the very objective of the ACP Scheme, as W.P.(C) No.16778 of 2021 Page 59 of 87 set out, is "to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues."
10.5. In Union of India Vrs. M.V. Mohanan Nair, (2020) 7 SCR 851, describing object behind ACP (Assured Career Progression) versus MACP (Modified Assured Career Progression) with reference to policy and wisdom of Pay Commission, it has been stated as follows:
"28. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the Grade Pay offered to a promotee; but yet not assume the responsibilities of a promotee. As submitted on behalf of Union of India, if the employees are entitled to enjoy Grade Pay in the next promotional hierarchy, without the commensurate responsibilities as a matter of routine, it would have an adverse impact on the efficiency of administration.
29. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments.W.P.(C) No.16778 of 2021 Page 60 of 87
MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body-- Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the Government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the Government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequer.
30. Observing that it is the function of the Government which normally acts on the recommendations of the Pay Commission which is the proper authority to decide upon the issues, in Union of India Vrs.W.P.(C) No.16778 of 2021 Page 61 of 87
P.V. Hariharan, (1997) 3 SCC 568, it was held as under:
„5. *** It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of „equal pay for equal work‟ is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders passed by Single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too. It would be in the fitness of things if all matters relating to pay scales, i.e., matters asking for a higher pay scale or an enhanced pay scale, as the case may be, on one or the other ground, are W.P.(C) No.16778 of 2021 Page 62 of 87 heard by a Bench comprising at least one Judicial Member. ***‟
31. Observing that the decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review, in State of U.P. Vrs. U.P. Sales Tax Officers Grade II Association, (2003) 6 SCC 250, the Supreme Court held as under:
„11. There can be no denial of the legal position that decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees. ***.‟
32. In Secretary, Government (NCT of Delhi) Vrs.
Grade-1 Officers Association, (2014) 13 SCC 296, the Supreme Court refused to interfere with the ACP Scheme as it would violate Government policy and since exercise of judicial review would not be proper, upheld the ACP Scheme and the conditions therein.
33. In State of Tamil Nadu Vrs. S. Arumugham, (1998) 2 SCC 198, the Supreme Court has observed that the Government has the right to frame a policy to ensure efficiency and proper administration and to provide to suitable avenues for promotion to officers working in different department. The Supreme Court has further observed that the Tribunal cannot substitute its own views for the W.P.(C) No.16778 of 2021 Page 63 of 87 views of the Government or direct new policy based on the views of Tribunal.
34. Observing that fixation of pay and determination of responsibilities is a complex matter which is for the executive to take a decision, the courts should approach such matters with restraint, in State of Haryana Vrs. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72, the Supreme Court held as under:
„10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. *** That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while W.P.(C) No.16778 of 2021 Page 64 of 87 taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. ***.‟
35. The prescription of Pay Scales and incentives are matters where decision is taken by the Government based upon the recommendation of the expert bodies like Pay Commission and several relevant factors including financial implication and court cannot substitute its views. As held in Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the court should approach such matters with restraint and interfere only when the court is satisfied that the decision of the Government is arbitrary. Even in a case where the court takes the view that order/Scheme passed by the Government is not an equitable one, ordinarily only a direction could be given to the State Government or the authority for consideration of the matter and take a decision. In the present batch of cases where the respondents are claiming financial upgradation in the Grade Pay of promotional hierarchy, no grounds are made out to show that the MACP Scheme granting financial upgradation in the next Grade Pay is W.P.(C) No.16778 of 2021 Page 65 of 87 arbitrary and unjust; warranting interference. The implementation of the MACP Scheme is claimed to have led to certain anomalies; but as pointed out earlier, MACP Scheme itself is not under challenge."
11. Government of Odisha in Finance Department vide Resolution No.3560-PCC(A)-49/2012/F, dated 06.02.2013, in consideration of Fitment Committee recommendations, granted 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 the Odisha Revised Scales of Pay Rules, 1998, and taking into account the uncertain promotional avenues and career stagnation of the State Government employees, decided to implement a career advancement scheme to be known as Revised Assured Career Progression Scheme (RACPS), with effect from 01.01.2013.
11.1. It can be culled out from the RACPS under the ORSP Rules, 2008, that after the Central Government introduced a Modified Assured Career Progression Scheme (MACPS), the Government of Odisha in the Finance Department vide Resolution dated 6th February 2013 allowed the RACPS for the State Government employees with effect from 01.01.2013. In terms of the said RACPS, three financial upgradations W.P.(C) No.16778 of 2021 Page 66 of 87 are made available counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single Cadre in the absence of promotion. In terms thereof an employee:
(a) on completion of 10 years of service in the entry grade, will be considered for the first upgradation under the RACPS;
(b) on completion of 20 years of service and having got only one upgradation either by promotion or by RACPS, will be considered for the second upgradation;
(c) likewise on completion of 30 years of service and having got two upgradations either by RACPS or promotion or both will be considered for third upgradation under the RACPS.
11.2. Per Paragraphs 2 and 4 of Annexure-I to the RACPS, it has further been stipulated that the financial upgradation under the RACPS would be admissible up to the highest Grade Pay of Rs.7,600/- in the Pay Band-- PB-3 under the ORSP Rules, 2008 and shall be permissible with effect from 1st January 2013 in case of those employees only after regulation of their pay under the ORSP Rules, 2008. It is stated that on W.P.(C) No.16778 of 2021 Page 67 of 87 introduction of the RACPS, the ACP Scheme under the ORSP, 2008, ceased to be operational.
11.3. Further, under Paragraph 4 thereof, it was stipulated that there will be a Screening Committee to decide the eligibility of persons for upgradation under the RACPS.
11.4. In paragraph 10 of the RACPS it has been clearly found mentioned that 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 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 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 the Pay Band corresponding to the revised Grade Pay. There shall, however, be no further fixation of pay at the time of regular promotion. In this paragraph the expression "immediate next higher Grade Pay" is conspicuously absent. Therefore, there is justification in holding that the petitioner would be entitled to W.P.(C) No.16778 of 2021 Page 68 of 87 Grade Pay corresponding to the Pay Band of promotional hierarchy.
12. As admitted by the opposite parties in their counter affidavit that Sri Anam Charana Behera, a Check Gate Clerk was given promotion to the post of "Weigh Bridge Clerk" and the Director of Mines way back in 2014 in supplying information to the applicant under the Right to Information Act, 2005 that the post of Weigh Bridge Supervisor is the promotional hierarchy of Check Gate Clerk/Tally Clerk and the Weigh Bridge Supervisor has the hierarchy of promotion to the post of Transport Supervisor. At this juncture it may be apposite to have reference to Paragraph 10 of the RACPS, wherein it has been envisaged that, "The employees of the Cadre having promotional hierarchy will get the Grade Pay of the promotional post. The employees in 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".
Even if it is construed that the post of Check Gate Clerk/Tally Clerk is ex-Cadre/isolated post, as asserted in the counter affidavit, the petitioner would be entitled to the next higher Grade Pay as per the First Schedule of the ORSP Rules, 2008.
W.P.(C) No.16778 of 2021 Page 69 of 8712.1. Reliance placed on Point No.13 of the Finance Department Clarification dated 20.01.2014 by the Additional Government Advocate is misplaced and misconceived. Said point of clarification does not deal with ex-Cadre, but it deals with the meaning of Cadre. Even if such Clarification is taken into account, "Example" as appended thereto may have relevant to take note of. Said Example reads as follows:
"Example:
1) The Industries Promotion Officers (IPOs) get promotion to the post of Assistant Directors of Industries, Assistant Engineers, Assistant Managers of different functional disciplines of District Industries Centres etc. But, the post of IPOs are not the Cadre post of the Assistant Directors of industries. Assistant Engineers, Assistant Managers etc. because these posts belong to „The Orissa Industries Service Rules, 1985‟ whereas the post of IPOs does not belong to „The Orissa Industries Service Rules, 1985‟.
Therefore, the post of IPOs shall not be considered as the Cadre post of the Orissa industries Service for the purpose. of RACPS."
12.2. With respect to the post of Industrial Promotion Officer as reflected in the Example mentioned above, this Court in a Division Bench in the matter of Additional Chief Secretary to Government and Others Vrs. Sunil W.P.(C) No.16778 of 2021 Page 70 of 87 Pattanayak and another, W.P.(C) No.3460 of 2017 vide Order dated 03.05.2017 observed as follows:
"Heard Mr. M.S. Sahu, learned Additional Government Advocate for the petitioners and Mr. Asok Mohanty, learned Senior Advocate for opposite party No.1.
The State functionaries being the petitioners have assailed the Order dated 27.10.2014 passed by the Odisha Administrative Tribunal in O.A. No. 338 of 2014, wherein the Tribunal directed for sanction and disburse of the benefit under RACP scheme (2nd and 3rd financial up-gradation) to the applicant. The petitioners have also challenged the Order dated 19.08.2 015 passed in R.P. No.01 of 2015 and L.P. No.01 of 2015, wherein the review application of the petitioners were rejected by the Tribunal.
The opposite party No.1, being the applicant has filed the aforementioned Original Application challenging the order of cancellation of sanction of RACP with prayer to sanction and disburse the scale of pay with Grade Pay of the promotional post under RACP Scheme to the applicant. It has been contended before the Tribunal that the applicant joined as Industrial Promotion Officer (IPO) on 22.08.1983. On completion of 15 years of service, he was extended with the benefit of TBA under ORSP Rules, 1998. He was also extended with the benefit of ACP on completion of 25 years of service under ORSP Rules, 2008. However, he has not been extended the benefit of Revised ACP under RACP Scheme as per Government Resolution dated 06.02.2013 which came into force with effect from 01.01.2013, although, he completed 30 years of service.W.P.(C) No.16778 of 2021 Page 71 of 87
According to the applicant the said Government Resolution provides that there shall be three financial up-gradation on completion of 10/20/30 years of service in a single Cadre. Rule 7 of the Orissa Industrial Service Rules, 1985 reveals that not more than 50% of the total vacancies in Class-II of the service in any year may be filled up by promotion from among non-gazetted non-ministerial Class-III field executive staff namely, Industries Promotion Officers, Industrial Supervisor in Grade Pay of Rs.500-930/- or as revised from time to time and such other posts as may be created in the equivalent grade or declared equivalent in status by Government from time to time having completed 7 years of service in the post. The Promotion quota of Industries Promotion Officers, Industrial Supervisors shall be in and according to the strength of qualified of officers in each group as may be decided by Government. The applicant being Industries Promotion Officer, promotional hierarchy of the said post is Assistant Manager/Assistant Director and above in Class-II service. Since, he has not been extended such promotional avenue on completion of 30 years he is entitled to get the 3rd financial up-gradation under RACP Scheme. Parawise comment has been filed on behalf of the present petitioners before the Tribunal admitting the above fact regarding promotional hierarchy basing on the seniority maintained in the gradation list by Director of Industries, Orissa. The Tribunal after going through the materials available on records and the arguments advanced by the parties came to a conclusion that the applicant has already been extended with the benefit of TBA on completion of 15 years of service and 2nd ACP on completion of 25 years of service in one post/cadre. He has already W.P.(C) No.16778 of 2021 Page 72 of 87 completed 30 years of service in the same post/grade, accordingly he is entitled to get the 3rd RACP as the post held by the applicant is not an isolated/ex-cadre post and the post of IPO has the promotional avenue and hierarchy. The Tribunal passed the order accordingly. Learned Additional Government Advocate submits that the Tribunal has not taken into consideration Clause-10 of the RACP Scheme and passed the impugned order and as such the order is liable to be interfered with.
Learned counsel for opposite party No.1 submits that the same contention was raised by the petitioners in W.P.(C) No.2831 of 2016 which has been disposed of on 27.06.2016 by which Clause-10 has been interpreted by the Court and held that the scheme is clear and the RACP is available to an employee having promotional hierarchy. The said ratio is applicable to the present case. The records of W.P.(C) No.2831 of 2016 were called for and perused.
It is not disputed that the said ratio is applicable to the present case. Since the post of IPO has promotional hierarchy, the Tribunal has rightly allowed the Original Application and directed the petitioners to extend the benefit under the Scheme to the applicant. There is no error apparent on the face of the record and as such, we are not inclined to interfere with the same. The writ petition stands dismissed accordingly."
12.3. A Division Bench of this Court in State of Odisha Vrs.
Sujata Rani Sahu, 2022 SCC OnLine Ori 950 in a case of isolated post has been pleased to observe as follows:
W.P.(C) No.16778 of 2021 Page 73 of 87"2.1. *** As per the ORSP Rules, 1998, she was granted 1st TBA on completion of 15 years of service in the scale of Rs.8000-13500/-. Subsequently, under the ORSP Rules, 2008, her pay was revised w.e.f. 01.01.2006 in pay band-2 of Rs.9300-34800/- with Grade Pay of Rs.5400/-.As per G.A. Department order no.483/2014 dated 08.07.2013, opposite party No.1 came under Group-A and by that time RACP scheme had come into force w.e.f. 06.02.2013, which provided three financial upgradations counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. The post of Sociologist is an isolated post and there is no promotional avenue and, as such, under the RACPs, an employee continuing in isolated post, without promotional hierarchy, is entitled to next higher Grade Pay as per the first schedule of ORSP Rules, 2008 with interpolations if any introduced subsequently. As opp. party No.1 was holding an isolated post, she was allowed second financial upgradation w.e.f. 01.01.2013 fixing her pay at Rs.24230/- with Grade Pay of Rs.6600/- in the scale of pay of Rs.9300-34800/- as per the order No.16759 dated 11.09.2014.
2.2 As per the stipulation made in para-10 of the RACP Resolution dated 06.02.2013, the employees in isolated/ex-cadre post, having no promotional hierarchy, will have to 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 W.P.(C) No.16778 of 2021 Page 74 of 87 Pay corresponds to a different pay band, the employees will get the pay band corresponding to the revised Grade Pay. Even though opposite party No.1 was extended with the benefit of financial upgradation with Grade Pay of Rs.6600/-, she was not paid the corresponding pay scale of Rs.15,600/- to Rs.39,100/-. Claiming the scale of pay of the corresponding Grade Pay of Rs.6,600/-, she made several representations, but when no action was taken, she filed O.A. No. 416 of 2015 before the Odisha Administrative Tribunal, Bhubaneswar. When the matter was pending, the State-petitioners withdrew the Grade Pay of Rs.6600/- vide Order No.20320 dated 19.11.2015, for which opposite party No.1 filed O.A. No. 3039 of 2015 seeking to quash the said Order.
2.3 The Tribunal heard both the O.As filed by opposite party No.1 together and disposed of the same vide a common order/judgment dated 17.07.2017, order portion of which is extracted hereunder:
„8. In view of the above discussion, the O.As are allowed. The Order dated 11.09.2015 vide annexure-8 is quashed and the order granting Grade pay of Rs.6,600/- vide order dated 11.04.2014 is restored. Consequently the respondents are directed to grant the corresponding scale of pay in Pay Band-3 of Rs.15,600-39,100/- and fix up her pay accordingly with effect from 01.01.2013, as has been done in the case of Bidyut Kumar Sahoo, within a period of three moths from the date of receipt of a copy of this order. The W.P.(C) No.16778 of 2021 Page 75 of 87 differential amount be calculated and paid to her within the said period.‟ 2.4 Challenging the aforesaid common order/ judgment dated 17.07.2017 passed in O.A. No. 416 of 2015 and O.A. No. 3039 of 2015, the State and its functionaries have filed the above noted two separate writ petitions before this Court.
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6. Having heard learned counsel for the parties and after going through the records, the only question to be decided by this Court is whether opposite party No.1, who is working in an isolated post, i.e., Sociologist, is entitled to get Grade Pay of Rs.6600/- in the corresponding pay band of Rs.15600-39100/- and if so whether the State-petitioners are justified in withdrawing such benefit?
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7. As a matter of fact, opposite party No.1 was working as Sociologist, which is an isolated post. There being no promotional avenue, RACP is the only source for her to get the benefit of higher scale of pay, due to stagnation of her promotional benefits.
***
8. 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.
W.P.(C) No.16778 of 2021 Page 76 of 87The 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 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.
9. 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.
10. 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.
W.P.(C) No.16778 of 2021 Page 77 of 8711. In State Bank of India Vrs. K.P. Subbaiah, (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.
12. 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 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.
13. 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:
W.P.(C) No.16778 of 2021 Page 78 of 87„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.‟ As far as the employers are concerned the apex Court said:
„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.‟ W.P.(C) No.16778 of 2021 Page 79 of 87 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.‟
14. 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 W.P.(C) No.16778 of 2021 Page 80 of 87 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.
15. Therefore, taking into consideration the above aspects, if opposite party No.1 was granted with a particular scale of pay with Grade Pay and was allowed to get such benefits, as there was no promotional avenue and RACP is the only source to get higher scale of pay, due to stagnation of promotional avenue, being holder of an isolated post, the benefit admissible to her cannot be denied."
12.4. This Court cannot be oblivious to take note of conceptual understanding with regard to ACP prior to 01.01.2013 and treatment of the same towards consideration of RACPS. It is explained in State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839 that:
W.P.(C) No.16778 of 2021 Page 81 of 87"A careful perusal of the RACPS introduced by the resolution of the FD dated 6th February 2013 reveals that even while introducing the said RACPS, the Government considered the recommendations of the fitment committee and the prevalent system of granting TBA under the ORSP Rules, 1998 as well as the ACP under the ORSP Rules, 2008. The RACPS Resolution acknowledges in its preamble that the Central Government had introduced the MACPS. Therefore, something similar had to be introduced in the State Government. Therefore, the RACPS was being introduced as a Career Advancement Scheme. The purpose of granting of financial upgradations was the absence of a promotional avenue to an employee who has remained over a long period of time in the same cadre. There are as many as 18 paragraphs in the RACPS. The grant of earlier benefits was clearly not seen as bar to receipt of the benefit under the RACPS. For instance, in Paragraph 18, it is clarified as under:
„Assured Career Progression (ACP) availed under ORSP Rules, 2008 shall not be taken into account while considering the RACPS in favour of an employee.‟ ***"
12.5. So, it would now be established that an Office Memorandum cannot "clarify" the RACPS Resolution dated 6th February 2013 which is of a legislative character. Vide, State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839.
12.6. Much stress has been laid on the decision of this Court rendered in State of Odisha Vrs. Bihari Lal, 2016 W.P.(C) No.16778 of 2021 Page 82 of 87 SCC OnLine Ori 333, wherein it has been observed as follows:
"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 corresponding 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 reckoned 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 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.W.P.(C) No.16778 of 2021 Page 83 of 87
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, Rules, Regulation or Scheme or culminates 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 opposite party No.1 as V.L.W. (Village Level Worker) being not promoted to the post of G.P.E.O. (Grama Panchayat Extension Officers) and P.A. (Progress Assistants) is entitled to RACP Scheme and as such ORSP Rules, 2008 will be applicable to them."
12.7. Said Bihari Lal‟s case (supra), was carried to the Hon'ble Supreme Court of India, being State of Odisha Vrs. Bihari Lal Barik, SLP(C) Diary No.20358 of 2017. Said case has come to be disposed of by Order dated 23rd August, 2017 in the following terms:
"Delay condoned.
We do not see any ground to interfere with the impugned order.
The special leave petition is accordingly dismissed.
Pending applications, if any, shall also stand disposed of."W.P.(C) No.16778 of 2021 Page 84 of 87
13. The conspectus of the above delineated principles laid down by the Courts read along with the facts of the present case with respect to ex-Cadre post with hierarchical positions discussed above by referring to RACPS under the ORSP Rules, as conceded by the opposite parties in the counter affidavit, makes it unambiguous that the petitioner is entitled to the benefits as claimed for.
Conclusion:
14. Having regard to decisions of this Court vide Order dated 03.05.2017 in Additional Chief Secretary to Government and Others Vrs. Sunil Pattanayak and another, W.P.(C) No.3460 of 2017; State of Orissa Vrs. Bihari Lal Barik, W.P.(C) No.2831 of 2016, disposed of on 27.08.2016 reported as State of Odisha Vrs. Bihari Lal, 2016 SCC OnLine Ori 3332; and State of Odisha Vrs. Sujata Rani Sahu, 2022 SCC OnLine Ori 950 there is no other option left for this Court than take a different view, but to hold that even ex-Cadre/isolated post holders are entitled to be extended with the benefit of RACPS under the ORSP Rules.
14.1. On the premise that the petitioner, Tally Clerk, as indicated by the Director of Mines while supplying 2 Challenge against Judgment of this Court in SLP(C) Diary No.20358 of 2017 got dismissed vide Order dated 23rd August, 2017 of the Hon'ble Supreme Court of India.
W.P.(C) No.16778 of 2021 Page 85 of 87information way back in the year 2014 that the promotional avenue of such post would be the Weigh Bridge Supervisor and thereafter the Transport Supervisor, and on an occasion one Sri Anam Charana Behera, a Check Gate Clerk, could be given the post of the Weight Bridge Supervisor, considering it to be promotional one, there is no scope for the opposite parties at this stage to deny the benefit. The petitioner being not given any promotional post though he worked since 1996 as Tally Clerk, he is entitled to get the legitimate pay under the RACPS as was accorded by the Office Order No.455/Mines, dated 16.03.2017 (1st RACP) and Order No.2036/Mines, dated 06.11.2017 (Pay Fixation).
14.2. In view of discussions made supra, the interpretation laid with respect to points of Clarification dated 20.01.2014 of the Finance Department vis-à-vis Resolution dated 06.02.2013 and principles emphasised in different case laws referred to and relied on in the foregoing paragraphs unequivocally leads to demonstrate that the reasoning ascribed to in Office Order 559/Mines, dated 07.04.2021 issued by the Deputy Director of Mines (Annexure-6) cancelling the RACPS and Pay Fixation given in the year 2017 with effect from 01.01.2013 following instructions of W.P.(C) No.16778 of 2021 Page 86 of 87 the Director of Mines, Odisha vide Letter dated 18.03.2021 (Annexure-4), deserves to be nullified.
14.3. In fine, this Court sets aside Office Order 559/Mines, dated 07.04.2021 issued by the Deputy Director of Mines (Annexure-6) and instructions of the Director of Mines, Odisha vide Letter dated 18.03.2021 (Annexure-4) and issues writ of mandamus to the opposite parties to restore the position in terms of the Office Order No.455/Mines, dated 16.03.2017 and Order No.2036/Mines, dated 06.11.2017 with respect to RACPS and Pay Fixation as was accorded to the petitioner forthwith.
14.4. Needless to observe that the opposite parties shall also give consequential effect of this judgment to the petitioner.
15. The writ petition stands disposed of with the above terms, but in the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA High Court of Orissa, Cuttack Designation: Senior Stenographer Reason: Authentication The 30th January, 2025//Laxmikant/Suchitra Location: High Court of Orissa, Cuttack Date: 30-Jan-2025 14:51:51 W.P.(C) No.16778 of 2021 Page 87 of 87