Orissa High Court
Afr Sanjay Pradhan vs State Of Odisha And Others ..... Opp. ... on 1 July, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WPC(OAC) NO. 4298 of 2015
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR Sanjay Pradhan ...... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. J. Sengupta, G. Sinha
and D.K. Panda, Advocates
For Opp. Parties : Mr. B. Prusty,
Standing Counsel for
S & ME Department
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI DECIDED ON : 01.07.2021 DR. B.R. SARANGI, J. The petitioner, who is working as Junior Clerk in the office of Block Education Officer, Banki-II (Dumpada), Cuttack, has filed this writ petition seeking to quash the order dated 05.08.2015 under Annexure-3 passed // 2 // by opposite party no.3 - Block Education Officer, Banki-II (Dampada), Cuttack in canceling the Revised Assured Career Progression benefit extended to him, vide order no. 128 dated 23.10.2013 under Annexure-2, and to issue direction to the opposite parties to extend such benefit to him.
2. The factual matrix of the case, in brief, is that the petitioner was duly selected in recruitment test and accordingly sponsored to the office of the Circle Inspector of Schools, Cuttack-III Circle, Jajpur and vide office order dated 23.03.1991 he was appointed as a Junior Clerk in the office of the Principal DIET, Dolipur, Cuttack, pursuant to which he joined on 02.04.1991. While he was continuing in service, he passed Paper-I of Group-A and Paper-I of Group- B of the Annual Departmental Examination of Accounts conducted by the Board of Revenue, Odisha, which was held on 26.12.1995 and 27.12.1995 respectively. 2.1 With the commencement of Orissa Revised Scales of Pay Rules, 1998, which inter alia provided that in case a person is allowed to continue in a single post or grade, // 3 // in which he was originally appointed, then he will be entitled to get a Time Bound Advancement Scale of Pay. In compliance to the same, the petitioner was allowed to get his pay fixed under the Time Bound Advancement Scales of Pay in the year 2006 on completion of 15 years service. 2.2. The Orissa Revised Scales of Pay Rules, 2008 was introduced by the State Government, vide Finance Department Notification dated 24th December, 2008, and the same was given effect to from 1st January, 2006. According to the provisions of the said Rules, the pay of the petitioner was also got revised and he was also extended with the benefit admissible to him.
2.3 Consequent upon implementation of the Modified Assured Career Progression Scheme (MACPS) by the Government of India, various service associations of the State Government employees came up with memoranda to consider implementation of the MACPS in respect to employees of the State Government. Taking into account the uncertain promotional avenues and career stagnation of the State // 4 // Government employees, the Government after careful consideration decided to implement a career advancement scheme to be known as Revised Assured Career Progression Scheme (RACPS) and the same was given effect to from 01.01.2013, which had come up by way of resolution dated 06.02.2013.
2.4. Under RACP scheme, it has been provided that there shall be three financial up-gradations, 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 up-gradation either by promotion or by RACPS will be considered for the 2nd up-gradation. Similarly, an employee completing 30 years of service and has got two up-gradations either by RACPS or promotion or both will be considered for 3rd up-gradation under RACPS.
// 5 // 2.5. As per the provisions of the above scheme, which has been issued vide resolution dated 06.02.2013, a screening committee was constituted and on the basis of the recommendation of the committee, vide its resolution dated 23.10.2013, the opposite party no.3 fixed the pay of the employees of the Block Education Officer, Cuttack under RACP scheme. The petitioner had got/earned no promotions during his service career spanning from 1991 till 2013. So his pay was fixed at Rs.10,090/- with grade pay of Rs.4200/- as his 1st RACP, then at Rs, 10,460/- with grade pay of Rs.4200/- as his 2nd RACP and consequent thereof, he was allowed to draw the arrears. The petitioner while receiving the benefit of RACP scheme available to him, on the basis of the recommendation made by the screening committee, the opposite party no.3 passed an order on 05.08.2015 in withdrawing/canceling the benefit relying upon the clarification of Finance Department letter dated 20.01.2014 and School and Mass Education Department letter dated 01.05.2014. Aggrieved thereby, the petitioner approached the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in // 6 // O.A. No. 4298 (C) of 2015 and on abolition of the said tribunal, the original application has been transferred to this Court and registered as above.
3. Mr. D.K. Panda, learned counsel appearing on behalf of Mr. G. Sinha, learned counsel for the petitioner contended that the order dated 05.08.2015 in Annexure-3 withdrawing the benefit under RACP Scheme, which was made available to the petitioner vide office order dated 28.10.2013 under Annexure-2, has been passed without assigning any reasons and, thereby, the same cannot sustain in the eye of law. While canceling the benefit admissible to the petitioner, the opposite party no.3 had taken into account the clarifications issued vide the Finance Department letter dated 20.01.2014 as well as School and Mass Education Department letter dated 01.05.2014, which are executive instructions and the same cannot have retrospective application. He further contended that in absence of any reasons, with regard to withdrawal or cancellation of the benefit extended to the petitioner, which directly or indirectly // 7 // affects the conditions of service of the employees, the order so passed in Annexure-3 cannot sustain in the eye of law. More so, the cancellation has been made without applying the principle of natural justice. It is further contended that the petitioner has neither played any role in the matter of fixation of pay under the RACPS nor can he made responsible for furnishing any incorrect information, which had led the concerned authority to commit the mistake by making the higher payment to the petitioner. In other words, the payment of higher dues to the petitioner was not on account of any misrepresentation by him nor on account of any fraud committed by him. If any mistake has been committed by the employer in extending the monetary benefit to the petitioner, for that the petitioner should not have been made to suffer. It is further contended that the benefit so extended to the petitioner should not have been cancelled or withdrawn, as he was a "Group-C" employee, and thus any recovery, if directed, cannot sustain in the eye of law. To substantiate his contentions, he has relied upon the judgment of the apex // 8 // Court in State of Punjab v. Rafiq Masih (White Washer) etc., AIR 2015 SC 696.
4. Per contra, Mr. B. Prusty, learned Standing Counsel for School and Mass Education Department, by admitting the fact that the petitioner was continuing as Junior Clerk by joining the post on 02.04.1991, vehemently contended that his service condition is regulated by the Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District Offices and Offices of the Heads of Departments) Rules, 1963 (in short the "Rules, 1963"). As per the Rule-9(a) of the Rules, 1963, which provides that promotion to the post of Senior Clerk shall be made from amongst the Junior Clerks, who have passed the Preliminary Accounts Examination as laid down in Rule-24. A Junior Clerk to be eligible for consideration for promotion to the post of Senior Clerk is to pass preliminary Accounts Examination and to the post of Head Clerk he/she has to pass Group B paper III and Paper IV conducted by the Board of Revenue, Odisha. As the // 9 // petitioner had not passed the Group-A Paper-II and Group-B Paper-IV of Accounts Examination, he was not eligible for promotion. It is further contended that Paragraph-13 of the RACP scheme unequivocally stipulates that grant of benefit under the RACP scheme shall be subject to rules/guidelines governing normal promotion. As the petitioner had not passed all the four papers of departmental examination, was ineligible for promotion to the promotional post of Senior Clerk and Head Clerk, thus was also not eligible for the benefit under RACP scheme, as there was no stagnation in promotion. But he was allowed the benefit of RACP scheme inadvertently, vide order dated 28.10.2013 at Annexure-2. Consequently, the order under Annexure-3 has been passed withdrawing such benefits, so far as it relates to the petitioner, relying upon the clarification issued by the Government of Odisha, Finance Department letter dated 20.01.2014 and School and Mass Education Department letter dated 01.05.2014 explaining the interpretation made to paragraph-13 of the RACP Scheme. Thereby, the authority // 10 // has not committed any illegality or irregularity so as to warrant interference by this Court.
5. This Court heard Mr. D.K. Panda, learned counsel appearing on behalf of Mr. G. Sinha, learned counsel for the petitioner; and Mr. B. Prusty, learned Standing Counsel for School and Mass Education Department through virtual mode; and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
6. For just and proper adjudication of the case in hand, it is apt to mention here that in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Odisha was pleased to make the rules regulating the method of recruitment and conditions of service of the persons appointed to the posts of clerks and assistants of the District Offices and Offices of the Heads of Departments, namely "The Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Clerks // 11 // and Assistants in the District Offices and Offices of the Heads of Departments) Rules, 1963". Rules 2(d), 9(a)(b) and 24, being relevant for the purpose of this case, are extracted below:
2. Definitions -
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(d) "Departmental Examination" means the Preliminary and Final Accounts Examination held by the Board of Revenue under Rule 163-A of the Bihar and Orissa Board's Miscellaneous Rules, 1928;
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9. Promotion to higher posts in the cadre of district offices - Promotion to the higher posts in the cadre of ministerial service of the district offices shall be subject to the passing of the departmental examinations and such other tests, if any, as may be ordered by the Head of the District Office in that behalf and shall be based on merit and suitability in all respects with due regard to seniority and be made in the following manner, namely:
(a) Promotion to the posts of Senior Clerk shall be made from amongst the junior clerks who have passed the Preliminary Accounts Examination as laid down in Rule 24 ;
(b) promotion to the posts of Head Clerks shall be made from amongst the senior clerks who have passed the Final Accounts Examination as laid down in Rule 24 on the basis of selection made by the selection board constituted in accordance with Rule 10;
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24. Departmental Examination - (1) The Junior Clerks of the District Offices and the Junior Assistants of the Offices of the Heads of Departments shall be required to pass the Preliminary Accounts Examination which is held by the Board of Revenue under Rule 163-A of the Bihar and Orissa Board's Miscellaneous Rules, 1928.
(2) The Senior Clerks of the District Offices and the Senior Assistants of the Offices of the Heads of // 12 // Departments shall be required to pass the Final Accounts Examination which is held by the Board of Revenue under Rule 163-A of the Bihar and Orissa Board's Miscellaneous Rules, 1928.
(3) No one shall be exempted from passing the departmental examinations."
7. Admittedly, the petitioner was selected in the recruitment test and was sponsored to the office of the Circle Inspector of Schools, Cuttack-III Circle, Jajpur and vide letter dated 23rd March, 1991 he was appointed as a Junior Clerk, pursuant to which he joined on 02.04.1991. He availed the benefit of Orissa Revised Pay Scale Rules, 1998 and also Orissa Revised Pay Scale Rules, 2008, without any promotional benefits from 1991 till 2013 for more than 22 years.
8. Taking into consideration the Modified Assured Career Promotion Scheme, introduced by the Government of India for Central Civilian employees, the Government of Odisha revised the Assured Career Progression Scheme for the State Government employees. The relevant clauses-1, 6, 9 and 13 of such Scheme, which // 13 // have been annexed to the Resolution dated 06.02.2013 under Annexure-1, read as follows:
"1. There shall be three financial upgradations under the R.A.C.P.S., 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 upgradation under R.A.C.P.S. An employee completing 20 years of service and has got only one upgradation either by promotion or by R.A.C.P.S. will be considered for the 2nd upgradation. Similarly an employee completing 30 years of service and has got two upgradation either by R.A.C.P.S. or promotion or both will be considered for 3rd upgradation under R.A.C.P.S. xx xx xx
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 H.B.A., allotment of Government accommodation may be permitted.
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9. There shall be no further financial upgradation under R.A.C.P.S., if an employee has already availed three financial upgradations by way of R.A.C.P.S./Promotion.
Xx xx xx
13. If a financial upgradation under the R.A.C.P.S. 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 R.A.C.P.S. shall be subject to rules/guidelines governing normal promotion. Such cases shall, therefore, be regulated under the provisions of the O.C.S. (C.C.A.) Rules, 1962 and instructions issued thereunder."
// 14 // In pursuance of the resolution dated 06.02.2013 under Annexure-1 and recommendation of the screening committee vide resolution no.3 dated 23.10.2013, the benefits of 1st RACP and 2nd RACP RACP Scheme were extended to the petitioner, vide office order dated 28.10.2013 under Annexure-2, where the name of the petitioner finds place at serial no. 7, which is extracted hereunder:
Sl. Name of Scale Date of Date of Pay+ G Pay+ G Pay+ G Pay+ G Date of Date of R No the of pay 1st increme Pay will Pay will Pay will Pay will Increm Increme e . Incumbe appoint nt/optio be fixed be fixed be fixed be fixed ent in nt m nt and ment n if any after after after as per the in RACP a post held against taken to grant of grant of grant of option Existin r the post. avail 1st RACP 2nd RACP 3rd exercised g Pay k RACP with date with date RACP with date s with with dates date xx xx xx xx xx xx xx xx xx xx xx x
7. Sanjay 9300- 02.04.1 01.04.2 10090 10460/- 10460/ 01.04. 01.04.2 Pradhan, 34800 991 JC. 013 GP GP - 2014 014 Jr. Clerk, GP 2400/- 4200/- GP O/o 4200 01.04.20 01.04.13 4200/-
B.E.O., 13 01.04.1 Cuttack 3 Pursuant to such office order dated 28.10.2013, the benefits have already been extended under RACP Scheme to the petitioner. Consequentially, a right has accrued in favour of the petitioner to enjoy the RACP Scheme of 2013.
9. By referring to counter affidavit and relying upon a clarification issued by the Government in Finance