Orissa High Court
Dibakar Acharya vs State Of Odisha on 11 December, 2023
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
ORISSA HIGH COURT : CUTTACK
WPC (OAB) No.21 of 2016
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
read with
Section 19 of the Administrative Tribunals Act, 1985
***
Dibakar Acharya, Son of Late Basudeva Acharya Retired Junior Accountant At: Goutam Nagar, 3rd Line P.O.: Bhabinipur, Via: Berhampur District: Ganjam ... Petitioner
-VERSUS-
1. State of Odisha Forest & Environment Department, Odisha Bhubaneswar, District: Khordha.
2. The Principal Chief Conservator of Forests, Odisha State Forest Headquarters At: Aranya Bhawan, Chandrasekharpur Bhubaneswar, District: Khordha
3. The Regional Chief Conservator of Forests Berhampur Circle, Berhampur At: Courtpetta Square, Berhampur, District: Ganjam
4. Divisional Forest Officer, Berhampur Division At: Courtpetta Square, P.O.: Berhampur District: Ganjam ... Opposite parties Counsel appeared for the parties:
WPC (OAB) No.21 of 2016 Page 1 of 71For the Petitioner : Mr. Biswanath Patnaik, Advocate For the Opposite parties : Mr. Lalatendu Samantaray, Additional Government Advocate and Mr. Rabi Narayan Mishra, Additional Government Advocate P R E S E N T:
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 28.11.2023 :: Date of Judgment : 11.12.2023 J UD G M E N T MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Aggrieved by the Office Order No.128/2F-NG-114/2014, dated, Berhampur, the 20th October, 2014 issued by the Regional Chief Conservator of Forests, Office of the Regional Chief Conservator of Forests, Berhampur Circle, Berhampur, directing for refund of excess payment made consequent upon incorrect fixation of pay under the Revised Assured Career Progression Scheme (for brevity referred to as "RACPS") finding ineligible, the petitioner approached the learned Odisha Administrative Tribunal, Berhampur Bench, Berhampur by way of filing Original Application under Section 19 of the Administrative Tribunals Act, 1985, registered as O.A. WPC (OAB) No.21 of 2016 Page 2 of 71 No.21 (B) of 2016, praying for grant of the following relief(s):
"1. Direct the Respondent No.3 to sanction the grade pay of the applicant raising his Grade Pay from Rs.2,400/- to Rs.4,200/- on completion of 20 years service in accordance with the aforementioned Government Resolution under RACP Scheme.
2. Quash the Order No.128, dated 20.10.2014 of the respondent No.3.
3. Pass any other relief(s) as deemed fit and proper in favour of the applicant."
1.1. After abolition of the Odisha Administrative Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E)], dated 2nd August, 2019), the said case having been transferred to this Court, O.A. No. 21 (B) of 2016 has been re-registered as WPC (OAB) No.21 of 2016.
PLEADINGS:
2. Having joined in Government service as Lower Division Clerk/Junior Clerk on 26.02.1979 in the Forest Department (as recorded in the Service Book), the petitioner was promoted to the post of Senior Clerk with effect from 10.12.1993 (as found mentioned in the Service Book) and having been relieved from Phulbani Division on 09.12.1993, he joined as Senior Clerk in Working Plan Division, Bhanjanagar on 10.12.1993.WPC (OAB) No.21 of 2016 Page 3 of 71
2.1. While discharging duty as such in the said post in the Office of the Divisional Forest Office, Berhampur Division, he was considered suitable for the post of Junior Accountant by the Departmental Promotion Committee. Accordingly, vide Office Order No.20/2F(G)-
118/2010, dated, Berhampur, the 31st January, 2011 was issued by the Regional Chief Conservator of Forests, Berhampur Circle stating as follows:
"Without prejudice to the claims of their seniors, if any, the following Senior Clerks who have been considered suitable for promotion to the rank of Junior Accountant in the D.P.C. held on 10.12.2010 and have been allotted to Berhampur Circle, vide Office Order No.76/2F(NG)/631/2010, dated 21.01.2011 of the Principal Chief Conservator of Forests, Odisha, Bhubaneswar are hereby promoted temporarily to the rank of Junior Accountant in Pay Band-2 in the Scale of Pay of Rs.5,200/- -- Rs.20,200/- and Grade Pay of Rs.2,100/- per month from the date of their joining the post with a probation period of one year and posted to the Divisions as mentioned below against each:
Sl. Name of the Senior Present place of posting Now posted to No. Clerk promoted to the Division rank of Junior Accountant Division Circle * * * * *
5. Sri Dibakar Acharya Berhampur Berhampur Berhampur Division * * * * * On successful completion of probation period, their further continuance will be decided depending upon performance of each individual by the undersigned."
WPC (OAB) No.21 of 2016 Page 4 of 712.2. The petitioner, promoted to the rank of Junior Accountant, joined on 01.02.2011 and was allowed the same scale of pay as is applicable to the Senior Clerk, i.e., Pay Band-I with scale of pay Rs.5,200/- -- Rs.20,200/-.
2.3. Again following Office Order bearing No.60/2KL/2012, dated 3rd April, 2012 was issued by the Conservator of Forests, Balangir (KL) Circle:
"In pursuance of Office Order No.355, dated 30.03.2012 of PCCF, Odisha the following Junior Accountants of Division Cadre who have been considered suitable for promotion to the rank of Head Clerk in the Departmental Promotion Committee held on 28.03.2012 and whose services have been placed at the disposal of Conservator of Forests, Balangir (KL) Circle vide Office Order No.38, dated 30.03.2012 of PCCF (KL), Odisha, are hereby promoted to the rank of Head Clerk in the Scale of Pay of Rs.9,300/- -- Rs.34,800/- with Grade Pay of Rs.4,200/- with immediate effect from the date of their joining in the respective Division to which they are hereby posted as follows:
Name of the Junior Present place of working Place of posting as Accountant promoted to as Junior Accountant Head Clerk the rank of Head Clerk * * * Sri Dibakar Acharya Berhampur (T) Division Patnagarh (KL) Division * * *"
2.4. By referring to said Office Order dated 03.04.2012 and also Office Order dated 30.03.2012, the petitioner addressed Letter dated 18.06.2012 to the Regional Chief WPC (OAB) No.21 of 2016 Page 5 of 71 Conservator of Forests, Berhampur Circle through the Divisional Forest Officer stating therein as follows:
"Under the above circumstance I forgo my promotion permanently and request your honour to be very kind enough to accept my forgo application or which act of kindness I shall remain ever grateful to you."
2.5. So, while discharging duty in the post of Junior Accountant, the Regional Chief Conservator of Forests, Berhampur Circle, Berhampur, issued Office Order bearing No.75/2F-NG-592/2012, dated the 2nd December, 2013, which reads as follows:
"Sri Dibakar Acharya, Junior Accountant of Office of the Divisional Forest Officer, Berhampur Division is allowed to retire from Government Service on superannuation in the afternoon of 31.01.2014 A.N. on attaining the age of 58 years. His date of birth is 10.01.1956 as entered in his Service Book."
2.6. Thus, the petitioner completed total period of service career of 34 years and 11 months and 4 days. Therefore, on the basis of RACPS vide Finance Department Resolution No. 3560--PCC(A)-49/2012-F., dated 06.02.2013, which came to force with effect from 01.01.2013, he has claimed as under (paragraph 6.9 of the original application):
"That the applicant submitted forgo petition not to go on promotion as Head Clerk stating some personal problems on a presumption that he is on the verge of retirement and already completed 30 years of services at the time of his WPC (OAB) No.21 of 2016 Page 6 of 71 promotion. Had he not been promoted to the grade of Head Clerk, his eligibility to get 2nd and 3rd upgradation Grade Pay is confined under the Finance Department Resolution dated 06.02.2013 as he has completed 30 years of service in Department. According to the scheme, the applicant is eligible to get his 2nd upgradation Grade Pay raising his Grade Pay from Rs.2,400/- -- Rs.4,200/- on completion of 20 years of service Grade Pay from Rs.4,200/- -- Rs.4,600/- on completion of 30 years in Junior Clerk, Senior Clerk/Junior Accountant with effect from 01.01.2013."
2.7. It has further been put forth by the petitioner that in order to overcome anomaly, realising that the Pay Band with Grade Pay in the posts of Senior Clerks and Junior Accountants are identical, the Government of Odisha in Forest and Environment Department issued following Notification dated 01.03.2016:
"Government of Odisha Forest and Environment Department Notification No.FE-FE3-FE-0485-2015-- 4185/F&E, Dated 01.03.2016 Sub.: Merger of Senior Clerk post with Junior Accountant post in Divisional Cadre.
The staffing pattern of the Divisional Forest Ministerial cadre at present consists of Junior Clerk, Senior Clerk, Junior Accountant and Head Clerk. The scale of pay of Senior Clerks and Junior Accountants are same and identical in PB-I i.e. Rs.5200-20200/- with GP Rs.2400/- Though the Junior Accountant is the promotional post of Senior Clerk, there is no financial benefit at the stage of 2 WPC (OAB) No.21 of 2016 Page 7 of 71 up-gradation under RACP on completion of 20 years on promotion to the post of Junior Accountant. In order to overcome such anomaly, the Government, after careful consideration of the demand of the Odisha Non-Gazetted Forest Service Association, have been pleased to merge 399 post of Senior Clerks with 93 promotional posts of Junior Accountant in Division Cadre with the same Grade Pay of Rs. 2400/-. After the merger, the total post of Junior Accountants will be 492 in the Divisional Cadre and the merger shall be given effect to from 01.01.2013.
This has been concurred in by Finance Department in their UOR No.459-ACSF, dated 08.02.2016.
By Order of the Governor, Sd/-
Principal Secretary to Government."
2.8. On the basis of said notification of Forest and Environment Department, it is claimed by the petitioner that since he was offered promotion to the post of Head Clerk from the post of Junior Accountant in the year 2012 vide Office Order dated 03.04.2012, i.e., around 32 years from entry into the Government service on 26.02.1979, by furnishing grievance petition dated 24th June, 2016 to the Regional Chief Conservator of Forests, Berhampur Circle, it is appraised that on completion of 20 years and 30 years of service he is entitled to RACPS vide Finance Department Resolution, dated 06.02.2013.
3. Reply dated 17.05.2017 on behalf of the opposite party Nos. 1 to 4 has been filed by the Divisional Forest Officer, Berhampur Forest Division, Berhampur raising WPC (OAB) No.21 of 2016 Page 8 of 71 objection to the averments and pleadings contained in the writ petition/Original Application.
3.1. The petitioner was promoted to the rank of the Senior Clerk, the Junior Accountant and the Head Clerk during December, 1993; February, 2011 and March, 2012 respectively. The petitioner availed two promotions, i.e., the Senior Clerk and the Junior Accountant. Accordingly, the pay has been fixed. On his promotion to the rank of the Head Clerk vide Office Order No.38, dated 30.03.2012 of the Principal Chief Conservator of Forests (Kendu Leaf), Odisha, he was posted to Patnagarh Kendu Leaf Division, vide Office Order No.60, dated 03.04.2012 of the Conservator of Forests, Balangir Kendu Leaf Circle. Subsequently, the Order being modified, he was posted at Jeypore Kendu Leaf Division vide Office Order No.81, dated 17.05.2012 of the Chief Conservator of Forests, Balangir Kendu Leaf Circle. However, in consideration of the representation dated 18.06.2012 submitted to the Regional Chief Conservator of Forests, Berhampur Circle vide Office Memo No. 3109, dated 20.06.2012, the petitioner was allowed by the Regional Chief Conservator of Forests, Berhampur Circle (opposite party No. 3) to forgo promotion to the rank of the Head Clerk vide Office Order No. 111, dated 12.07.2012.
WPC (OAB) No.21 of 2016 Page 9 of 713.2. Taking into account the uncertain promotional avenues and career stagnation of the employees, the Government of Odisha after careful consideration have decided to implement a career advancement scheme to be known as Revised Assured Career Progression Scheme ("RACPS") with effect from 01.01.2013 vide Finance Department Resolution No. 3560-PCC(A)-49/2012/F, dated 06.02.2013. Accordingly, the proposal for sanction of financial upgradation under above scheme of the Head Clerk/Junior Accountant/Senior Clerk was submitted to the competent sanctioning authority, viz., Regional Chief Conservator of Forests, Berhampur Circle by the Divisional Forest Officer, Berhampur Division vide Office Memo No.5721, dated 24.07.2014.
3.3. The petitioner had availed one financial upgradation, i.e., Grade Pay of Rs. 2,400/- on account of his promotion to the rank of the Senior Clerk in the year 1993. The next promotional hierarchy was the Junior Accountant, which post had no Grade Pay. Therefore, as per Government of Odisha in Forest and Environment Department Notification No.FE-FE3-FE-0485-2015-- 4185/F&E, dated 01.03.2016, it is considered that Grade Pay of the Senior Clerk is identical to that of the Junior Accountant and fixed at Pay Band-I, i.e., Rs.5,200/- -- Rs.20,000/- with Grade Pay Rs.2,400/-. It is clarified therein that "though the Junior Assistant is the promotional post of Senior Clerk, there is no WPC (OAB) No.21 of 2016 Page 10 of 71 financial benefit at the stage of 2nd upgradation under RACPS on completion of 20 years on promotion to the post of Junior Accountant". So, the opposite party Nos.1 to 4 submitted that the petitioner, having forgone promotion to the rank of the Head Clerk after completion of 30 years in the year 2011-12, as envisaged in paragraph 16 of Annexure-1 appended to the Finance Department Resolution dated 06.02.2013 with regard to "details of the RACP Scheme and condition for grant of the financial upgradation under the Scheme", the applicant has not been allowed 3rd upgradation, i.e., Grade Pay of Rs.4,200/-.
3.4. The opposite parties in their counter explained the position that since scale of pay of the Senior Clerk and the Junior Accountant was same and identical being fixed at Pay Band-I, i.e., Rs.5,200/- -- Rs.20,000/- with Grade Pay Rs.2,400/-, there is no financial benefit at the stage of 2nd upgradation under the RACPS on completion of 20 years of service. Therefore, the anomaly has been overcome by merging posts of Senior Clerks with promotional posts of Junior Accountants by virtue of the Forest and Environment Department Notification dated 01.03.2016. Consequent upon such merger, it is stated that a proposal has been submitted to the Regional Chief Conservator of Forests, Berhampur Circle (opposite party No.3) for consideration of financial upgradation in WPC (OAB) No.21 of 2016 Page 11 of 71 favour of the petitioner vide Office Memo No.3410, dated 24.05.2016.
4. Putting forth grievance against the objection raised by the opposite party Nos.1 to 4, the petitioner by way of reply to counter filed before this Court on 19.10.2022, submitted that having forgone promotion on 18.06.2012, thereby after completion of 32 years of Government service, and retired on attaining superannuation on 31.01.2014, he is entitled to another benefit under the RACPS. He, thus, made prayer "to direct the opposite parties to sanction the Grade Pay of the petitioner raising his Grade Pay from Rs.2,400/- to Rs.4,200/- on completion of 20 years and Grade Pay from Rs.4,200/- to Rs.4,600/- on completion of 30 years in a particular Grade prior to his promotion to the rank of Head Clerk under RACP Scheme".
5. An additional counter affidavit is filed on 25.11.2022 on behalf of the opposite party No.4-Divisonal Forest Officer being sworn to by Dr. Rudra Prasad Rath, Assistant Conservator of Forests, whereby it is elicited inter alia that the petitioner availed 2nd financial upgradation, i.e., Accumulated Career Progression ("ACP") on completion of 15 years of service on 05.08.2009 in terms of the Odisha Revised Scale of Pay Rules, 2008 (for short, "ORSP Rules"), preceded by 1st financial upgradation WPC (OAB) No.21 of 2016 Page 12 of 71 being extended and availed by him when he got promoted to the rank of Senior Clerk on 10.12.1993.
5.1. So far as prayer to fix Grade Pay at appropriate position on completion of 30 years of service prior to his promotion to the rank of Head Clerk, it is stated that since the petitioner joined as Lower Division Clerk on 26.02.1979, he availed benefit of ACP in the year 2009 under the ORSP Rules after being promoted to the rank of Senior Clerk in 1993, and thereafter 2nd financial upgradation was on 10.12.2008 on completion of 15 years of service. In the year 2011, he was promoted vide Office Order dated 21.01.2011, pursuant to which he joined as "Junior Accountant" on 01.02.2011. Therefore, his pay was fixed by extending 3% increment as is apparent from Office Order No.96, dated 24.05.2011 of the Divisional Forest Officer, Berhampur. This being 3rd financial upgradation and the petitioner having chosen to forgo the promotion offered to him to the post of Head Clerk in the year 2012 on completion of 30 years of service, he is not entitled to claim any further benefit.
5.2. It has been clarified further that whereas scale of pay of Junior Clerk is Rs.5,200/- -- Rs.20,200/- and Grade Pay attached to said scale of pay is Rs.1,900/-, scale of pay of Senior Clerk is Rs.5,200/- -- Rs.20,200/- with attached Grade Pay Rs.2,400/-. The next promotional post being Head Clerk, the scale of pay for the said post WPC (OAB) No.21 of 2016 Page 13 of 71 is Rs.9,300/- -- Rs.34,800/- with Grade Pay Rs.4,200/-. Since the petitioner has forgone the promotion, he cannot have benefit of said scale of pay with Grade Pay meant for Head Clerk.
HEARING OF WRIT PETITION BEFORE THIS COURT:
6. On the pleadings being exchanged among counsel for respective parties, on their consent, the matter is taken up for final hearing at the stage of admission. This Court heard Sri Biswanath Patnaik, learned Advocate for the petitioner and Sri Lalatendu Samantaray along with Sri Rabi Narayan Mishra, learned Additional Government Advocates appearing on behalf of the opposite party Nos. 1 to 4.
SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
7. Sri Biswanath Patnaik, learned Advocate submitted that since the post of Senior Clerk got merged with the post of Junior Accountant vide Government of Odisha in Forest and Environment Department Notification dated 01.03.2016, the petitioner, having joined in the Government service in the post of Lower Division Clerk in the year 1979 and got promotion to the post of the Senior Clerk in the year 1993, i.e., after 14 years, and subsequently, became Junior Accountant in the year 2011 with the same scale of pay as is applicable to Senior Clerk, is entitled to get the benefit of RACPS as WPC (OAB) No.21 of 2016 Page 14 of 71 clarified in Memo No.17598/2F(NG)-481/2012, dated 15.09.2016.
7.1. Sri Biswanath Patnaik pressed into service the said clarification with reference to contents of paragraph 6.13 of the Original Application by submitting that the petitioner having completed service for around 35 years, he is entitled to be fit in the Pay Band of Rs.29,300/- --
Rs.34,800/- with Grade Pay of Rs.4,600/-. For convenience the clarification as referred to above is reproduced hereunder:
"Office of the Principal Chief Conservator of Forests, Odisha, Aranya Bhawan, Chandrasekharpur, Bhubaneswar - 23.
Memo No. 17598/2F(NG) 481/2012 Date 15.09.2016 To All Divisional Forest Officer, (T/NT/KL/WL) Division Sub.: Clarification regarding sanction of Grade Pay on grant of RACP to Junior Clerk, Senior Clerk & Head Clerk.
I am directed to say that under paragraph 10 of Finance Department Resolution No.3560/F, dated 06.02.2013, Government have provided that the employees of the cadre, having promotional hierarchy, will get the Grade Pay of the promotional post.WPC (OAB) No.21 of 2016 Page 15 of 71
Since a Junior Clerk of Divisional Cadre is likely to be promoted to the post of Junior Accountant and thereafter to the post of Head Clerk, a Junior Clerk being considered for sanction of RACP by the Screening Committee may be allowed the immediate next promotional Grade Pay available in the same Pay Band, in the existing cadre post and thereafter the G.P. of the Head Clerk and next G.P. of the Pay Band of Head Clerk (i.e. 9300--34800) on completion of 30 years of service.
In order to simplify the above decision a tabular information is given below:
Name of Scale of pay in Grade Pay to be allowed the post Pay Band under completion of 10 Years 20 Years 30 Years Junior PB 1 PB 15,200- PB 29,300- PB 29,300-
Clerk 5200 --20200 20,000 34,800 34,800 (Divisional + Cadre) 2,400/- 4,200/- 4,600/-
GP 1900/-
All the cases may be decided accordingly.
Senior Administrative Officer"
7.2. Stemming on aforesaid clarification dated 15.09.2016, it is vehemently urged by Sri Biswanath Patnaik, learned Advocate that the request of the petitioner that vide Grievance Petitions dated 24.06.2016 and 17.09.2016 craving for 2nd upgradation in Grade Pay from Rs.2,400/- to Rs.4,200/- and 3rd upgradation in Grade Pay from Rs.4,200/- to Rs.4,600/- taking into account 30 years of Government service both in the grade of Junior Clerk and Senior Clerk/Junior Accountant with WPC (OAB) No.21 of 2016 Page 16 of 71 effect from 01.01.2013 in terms of RACPS should have been considered favourably by the authorities concerned.
8. Sri Lalatendu Samantaray, learned Additional Government Advocate, per contra, submitted that the impugned action vide Office Order dated 20.10.2014 cannot be stated to be erroneous inasmuch as the petitioner cannot be extended to none of the benefits claimed.
8.1. First and foremost, the claim of the petitioner for 2nd upgradation in Grade Pay from Rs.2,400/- to Rs.4,200/- and 3rd upgradation in Grade Pay from Rs.4,200/- to Rs.4,600/- taking into account 30 years of Government service both in the grade of Junior Clerk and Senior Clerk/Junior Accountant with effect from 01.01.2013 in terms of RACPS as made in paragraphs 6.12 and 6.13 of the Original Application/Writ Application cannot be acceded to as the petitioner got promotion in the year 1993 to the rank of Senior Clerk and thereafter Junior Accountant by way of promotion in the year 2011 after completion of 14 years and 32 years of service respectively with ACP in the year 2008 on completion of around 29 years of service.
8.2. So far as prayer of the petitioner to quash Office Order dated 20.10.2014 is concerned, Sri Lalatendu Samantaray, learned Additional Government Advocate WPC (OAB) No.21 of 2016 Page 17 of 71 has taken this Court to the following action suggested to be taken by the Regional Chief Conservator of Forests, Berhampur Circle:
"Office of the Regional Chief Conservator of Forests;
Berhampur Circle Tel: 0650-2281694 FAX-0680-228140 [email protected] Office Order No. 128/2F-NG-114/2014 Dated, Berhampur, the 20th October, 2014.
In pursuance of Finance Department Resolution No. 3560/F, dated 06.02.2013, No. 16400/F, dated
02.05.2013 followed by subsequent clarification of that Departmental Memo No. 1738/F dated 20.01.2014 communicated by the Principal Chief Conservator of Forests, Odisha, Bhubaneswar vide Memo No. 1847 dated 27.01.2014 and recommended by the Screening Committee on 20.09.2014, the Pay/increment of 07 numbers of staff working under the establishment of Divisional Forest Officer, Berhampur Division is fixed as per statement enclosed as Annexure 'A' under RACP Scheme with effect from the date as indicated against each taking into consideration.
Excess payment made as result of incorrect fixation of pay under RACP Scheme or due to error recommendation of Screening Committee, if any, detected subsequently will be refunded by him/her by way of recovery from salary/entitlements/ Pension etc. Sd/-
(Jitendra Kumar) Regional Chief Conservator of Forests, Berhampur Circle.
WPC (OAB) No.21 of 2016 Page 18 of 711Fixation of Pay and Grade Pay of staff working under Divisional Forest Officer, Berhampur Division under RACP Scheme Sl. No. 2 Name & Designation of the employee Sri Dibakar Achrya, Jr. Accountant D.O.J. in Govt. Service 26.02.1979 Total period of Service completed as on 33 years 01.01.2013 Financial Up-gradation availed during 1st ACP-SC-27.11.93 service as on 01.01.2013 J.A-01.02.11 Whether Departmental Exam/Accounts Passed Departmental Exams & Training passed for Promotion Accountants Training Existing pay & Grade Pay as on Pay Rs.12,030+ G.P.2400 01.01.2013/pay Band Pay/G.P. allowed in annual Date of Rs.12,470+G.P. Rs.2400 w.e.f.
increment 01.02.2013
Date of 10 years 25.02.89
completion of 20 years 25.02.99
30 years 25.02.2009
Whether D.P./Vigilance Cases or other No
cases pending
Recommendation of the Screening Not eligible to avail RACP as per
Committee Para 15 of Finance Department
No.3560 dt.06.02.2013 read with
clarification issued at Sl. No.5 of
Finance Department No.1738/F
dt.20.01.2014 as he has foregone
the promotion during the year
2012. Which has been accepted
vide Office Order No.111 dated
12.07.2012 of Regional Chief
Conservator of Forests,
Berhampur Circle.
Up-gradation in stage-I, II, III/date of Not eligible
option exercised if any
Recommendation Pay increased ---
for fixation of pay through increment @ Stage by the 3% w.e.f. (Date) as screening per Rule 13(2) of committee ORSP, 2008 Grade Pay fixed w.e.f. ---
(date) with stage
Pay & Grade Pay ---
finally fixed after
grant of financial up-
gradation in RACP
Scheme
Of Annual increment ---
Regional Chief Conservator of Forests, Berhampur Circle."
1 Only relevant portion as is relevant qua the petitioner is extracted.
WPC (OAB) No.21 of 2016 Page 19 of 718.3. It is, therefore, submitted by Sri Lalatendu Samantaray, learned Additional Government Advocate that on getting promotion to the post of Senior Clerk in the year 1993, having entered into the Government service on 26.02.1979 as Lower Division Clerk, the petitioner availed benefit of ACP as per ORSP Rules, 2008, and subsequently joined in the promotional post of Junior Accountant in the year 2011. Thus, by the time of completion of 15 years of service, the petitioner got one promotion from Lower Divisional Clerk to Senior Clerk (i.e., first financial upgradation) and then ACP on 10.12.2008 (which is second financial upgradation). Further, on 21.01.2011, the petitioner was granted 3% increment. In this regard, Sri Lalatendu Samantaray relied upon the following documents:
"Office of the Chief Conservator of Forests:
Berhampur Circle Office Order No. 169/2F(NG)/28/09 Dated, Berhampur, the 5th August, 2009 In pursuance of Government of Orissa, Finance Department Notification No.54080/F., dated 16.12.2008 read with that Department Notification No.55244/F., dated 24.12.2008 and Memo No.55371/F., dated 26.12.2008, Sri Dibakar Acharya, Senior Clerk of the Office of the Divisional Forest Officer, Berhampur Division, who has been found suitable in the screening committee held on 28.07.2009 for sanction of ACP, is allowed 1st ACP WPC (OAB) No.21 of 2016 Page 20 of 71 after completion of 15 years of service in the original post/grade of Senior Clerk as given below:
Name Date Date Date Pay Prior to Add Pay after to and of of from sanction of ACP amo sanction of ACP Desig appoin compl which unt nation tment etion ACP of of 15 is one years sancti incre oned ment @ 3% of Pay + Grad e Pay 10.12. Pa Gr Tot Pa Gr Tot 2008 y ad al y ad al e e Pa Pa y y Dibak 10.12. 09.12. 10 24 12 380 10 24 12 ar 1993 2008 03 00 43 41 00 81 Achar 0 0 0 0 ya, Senior Clerk (AK Jena) Divisional Forest Officer Berhampur Division"
"Office of the Divisional Forest Officer:
Berhampur Forest Division Office Order No. 96/2F(P/2) Dated, Berhampur, the 24th May, 2011 Consequent upon promotion of Sri Dibakar Acharya, Senior Clerk to the rank of Junior Accountant vide O.O. No.76/2F (NG) 631/2010, dated 21.01.2011 of WPC (OAB) No.21 of 2016 Page 21 of 71 Principal Chief Conservator of Forests, Orissa and O.O.No.20/2F (G)-148/2010, dated 31.01.2011 of Regional Chief Conservator of Forests, Berhampur Circle is allowed one increment @ 3% raising his pay from Rs.13600/- to Rs.14010/- under ORSP Rules, 2008 read with Memo No.PCC 51/2008/55371, dated 26.12.2008 of Finance Department Illustration No.7 with effect from 01.02.2011.
Date of Pay + Grade Amount of Pay fixed on Date of
joining on Pay as on increment promotional increment
promotional 01.02.2011 @ 3% of post
post Pay + (Pay +
Grade Pay Grade Pay)
01.02.2011 13600 410 14010 01.02.2012
(AK Jena)
Divisional Forest Officer
Berhampur Division"
8.4. Sri Rabi Narayan Mishra, learned Additional
Government Advocate taking cue from the arguments advanced by Sri Lalatendu Samantaray, learned Additional Government Advocate drew attention of this Court to paragraph 16 of the RACPS. For ready reference the RACPS, 2013, is given hereunder:
"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.WPC (OAB) No.21 of 2016 Page 22 of 71
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 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.
WPC (OAB) No.21 of 2016 Page 23 of 715. 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 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 WPC (OAB) No.21 of 2016 Page 24 of 71 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 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.
WPC (OAB) No.21 of 2016 Page 25 of 717. 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.
8. 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 WPC (OAB) No.21 of 2016 Page 26 of 71 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.
11. 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.
WPC (OAB) No.21 of 2016 Page 27 of 71Therefore, no reservation orders / roster shall apply 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 under the RACPS, whichever is beneficial like the regular employee in the parent cadre had they not been deputed.
WPC (OAB) No.21 of 2016 Page 28 of 7118. 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"
8.5. Laying emphasis on the General Administration Department Office Memorandum dated 20.08.1999, Sri Rabi Narayan Mishra, Additional Government Advocate submitted that considering the representation of the petitioner the competent authority having taken note of that "Sri Acharya, Junior Accountant promoted to the rank of Head Clerk without prejudice to the claims of his seniors, if any and posted to Patnagarh KL Division vide Office Order No.60, dated 2 KL/2012, dated 03.04.2012 of Conservator of Forests, Balangir KL Circle" has passed Office Order bearing No.111/2F-NG-682/2012, dated 12.07.2012 to the following effect:
"The willingness of Sri Dibakar Acharya, Junior Accountant, made vide his representation dated 18.06.2012 and forwarded by the Divisional Forest Officer, Berhampur Division to forgo his promotion to the rank of Head Clerk permanently is hereby accepted."
8.6. For better appreciation he has placed on record the Office Memorandum dated 20.08.1999, which is to the following effect:
WPC (OAB) No.21 of 2016 Page 29 of 71"General Administration Department Office memorandum the 20th August 1999 Subject: Foregoing of promotion to Higher Rank/Grade No. 24819-S.C./6-35/99-Gen.-
Promotion implies the advancement to a higher rank or grade in service career and hence it is normally accepted by a Government servant. It also involves shouldering of larger responsibility.
2. It is possible, however, that a Government employee, who is due for promotion or has already received the offer of promotion, may represent to forgo the promotion.
3. A question has arisen whether a Government servant may be allowed to forego the promotion
(a) for a particular period after which he may opt to be considered for promotion once again or
(b) forever with the condition that he may be retained in a particular station or post.
4. After careful consideration, it is hereby clarified as follows:
(a) It is not desirable to introduce an element of optional deferment of promotion for temporary periods. To forego is to give up. An employee, who does not wish to accept the larger responsibility of higher rank/grade, may forego the promotion once and for all.
(b) Secondly, the foregoing of promotion shall not be conditional. For example, no commitment can be given that an employee shall be WPC (OAB) No.21 of 2016 Page 30 of 71 retained in a particular station/office/post just because he has opted to forego the promotion.
(c) In case a Government servant opts for permanent and unconditional foregoing of promotion, an Office Order should be issued to that effect and an entry should be made in the Service Book. The resultant vacancy may be filled up by elevating the next eligible an suitable employee.
(Rajendra Kishore Panda) Additional Secretary to Government."
8.7. Having referred to the position applicable to the employee who preferred to refuse promotion voluntarily, Sri Rabi Narayan Mishra, learned Additional Government Advocate supplementing the argument advanced by Sri Lalatendu Samantaray, learned Additional Government Advocate submitted that effective order being passed by the Regional Chief Conservator of Forests, Berhampur Circle on 12.07.2012, copy of which is placed at Annexure-E/4 to the additional counter affidavit dated 24.11.2022 filed on behalf of the opposite party No.4, in consonance with the Office Memorandum dated 20.08.1999, and in terms of Paragraph 16 of the Annexure-I to the RACPS vide Finance Department Resolution dated 06.02.2013, the claim of the petitioner, as made at paragraph 6 of the reply to the counter affidavit dated 19.10.2022, for issue of writ of mandamus to sanction "Grade Pay from Rs.2,400/- to WPC (OAB) No.21 of 2016 Page 31 of 71 Rs.4,200/- on completion of 20 years and Grade Pay Rs.4,200/- to Rs.4,600/- on completion of 30 year in a particular grade prior to his promotion to rank of Head Clerk under RACP Scheme" deserves to be rejected.
DISCUSSIONS AND ANALYSIS:
9. At the outset it is felt expedient to have overview of the terms "promotion" and "upgradation".
9.1. The legal position regarding the distinction between upgradation and promotion is well settled. In Union of India Vrs. Pushpa Rani, (2008) 9 SCC 24, the Supreme Court 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 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."
9.2. The decision in Union of India Vrs. Pushpa Rani, (2008) 9 SCC 24 was discussed in Bharat Sanchar Nigam Limited WPC (OAB) No.21 of 2016 Page 32 of 71 Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510 and 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. 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 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.
WPC (OAB) No.21 of 2016 Page 33 of 71(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, 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 WPC (OAB) No.21 of 2016 Page 34 of 71 or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter, there is no need to apply the rules of reservation. But where the upgradation involves a selection process and is therefore a promotion, the rules of reservation will apply.
(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."
10.1. 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:
WPC (OAB) No.21 of 2016 Page 35 of 71"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 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).
WPC (OAB) No.21 of 2016 Page 36 of 7118. 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 set out, is "to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues."
10.2. 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 WPC (OAB) No.21 of 2016 Page 37 of 71 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. 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 WPC (OAB) No.21 of 2016 Page 38 of 71 Pay Commission which is the proper authority to decide upon the issues, in Union of India Vrs. 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 heard by a Bench comprising at least one Judicial Member. ***' WPC (OAB) No.21 of 2016 Page 39 of 71
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 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 WPC (OAB) No.21 of 2016 Page 40 of 71 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 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 WPC (OAB) No.21 of 2016 Page 41 of 71 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 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."
10.3. 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) WPC (OAB) No.21 of 2016 Page 42 of 71 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.
10.4. It can be culled out from the Revised Assured Career Progression Scheme under the Odisha Revised Scale of Pay 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 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 WPC (OAB) No.21 of 2016 Page 43 of 71 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.
10.5. 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 introduction of the RACPS, the ACP Scheme under the ORSP, 2008, ceased to be operational.
10.6. Further, under Paragraph 4 thereof, it was stipulated that there will be a Screening Committee to decide the eligibility of persons for upgradation under RACPS. Under paragraph 13, it was provided that if a financial upgradation of the RACPS was not allowed due to certain departmental proceedings, the case of the concerned employee would be reviewed in the subsequent years. In the event of disciplinary/penal proceedings, the grant of benefit under the RACPS would be subject to the rules/guidelines governing normal WPC (OAB) No.21 of 2016 Page 44 of 71 promotion and would be governed under the provisions of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962.
11. With the above backdrop, from the pleadings brought on record, submissions made and arguments advanced by counsel for respective parties, essential facts necessary for adjudicating as to whether the petitioner is entitled to the relief(s) claimed for with direction to the opposite parties to sanction "Grade Pay from Rs.2,400/- to Rs.4,200/- on completion of 20 years and Grade Pay Rs.4,200/- to Rs.4,600/- on completion of 30 years in a particular grade prior to his promotion to rank of Head Clerk under RACP Scheme" are given infra.
11.1. Perusal of record shows the following facts:
i. The petitioner joined in the Government service as Lower Division Clerk on 26.02.1979;
ii. On completion of around 14 years of service, joined promotional post of Senior Clerk on 10.12.1993, thereby availed 1st financial upgradation, i.e., Grade Pay of Rs.2,400/- and got 1st ACP on 10.12.2008;
iii. On completion of around 18 years of service, became Junior Accountant by way of promotion on 01.02.2011 in the same scale of pay as that was applicable to the post of Senior Clerk;WPC (OAB) No.21 of 2016 Page 45 of 71
iv. After completion of 30 years of service, he was considered for promotion to the post of Head Clerk which he voluntarily forgone, which has been accepted by the competent authority on 12.07.2012.
11.2. Vide Paragraph 1 of Annexure-I appended to the RACPS, it is provided that three financial upgradations shall be counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. So, after completion of 10 years of service in the entry grade, the petitioner is entitled to get his 1st upgradation; however, after 10 years of service, i.e., on 10.12.1993, the petitioner got promoted to the rank of Senior Clerk in the pay of Rs.10,410/- with Grade Pay of Rs.2,400/-.
11.3. After 32 years of service, i.e., on 01.02.2011, the petitioner joined in promotional post of Junior Accountant without any Grade Pay, but pay akin to that of the Senior Clerk. As is apparent from Government of Odisha in Forest and Environment Department Notification No. 4185-FE-FE3-FE-0485-2015/F&E, dated 01.03.2016, said Junior Accountant post in Division Cadre has been declared merged with that of the Senior Clerk with Grade Pay of Rs.2,400/-. It is found mentioned in said Notification that such merger has been effective from 01.01.2013. Therefore, WPC (OAB) No.21 of 2016 Page 46 of 71 considering such changed position, the Divisional Forest Officer, Berhampur Division has issued following letter with request to allow RACP on completion of inter alia 20 years of service of the petitioner:
"Office of the Divisional Forest Officer :
Berhampur Forest Division Memo No. 3410/2F, Dated, Berhampur, the 24th May, 2016 To The Regional Chief Conservator of Forests, Berhampur Circle.
Sub.: Sanction of RCP.
Ref.: Memo No.4187, dated 01.03.2016 of Govt. of Odisha, Forest & Environment Department and Your Memo No.4434, dated 20.10.2014.
In inviting a reference to the above cited correspondences it is to inform you that the following Ministerial staffs of this division were allowed RACP i.e. Grade Pay Rs.4200/- on completion of 30 years service vide your O.O.No.128 dated 20.10.2014, except Sl.No.2. In the meantime the Government of Odisha, Forest & Environment Department vide their Notification No. 4185 dated 01.03.2016 merged the post of Senior Clerk Divisional Cadre with the post of Junior Accountant Divisional Cadre w.e.f. 01.01.2013 in connection with sanction of 2nd upgradation on completion of 20 years service. I would therefore request you please allow RACP on completion of 10/20/30 years service basing on the WPC (OAB) No.21 of 2016 Page 47 of 71 above notification of the Forest & Environment Department.
Sl. Name Date of Years Grade Pay Remarks No. & entry Completed allowed on Designation into as on completion Service 01.01.2013 of 30 years service w.e.f.
01.01.2013
* * * * * *
3. Sri Dibakar 26.02.1 33 years NIL Forgone 3rd
Acharya, 979 promotion which
Junior has been
Accountant accepted vide
your O. O. No.
111/12.07.2012
Divisional Forest Officer
Berhampur Division"
11.4. Therefore, the petitioner has prayed for direction to the opposite parties to accord him sanction of Grade Pay from Rs.2,400/- to Rs.4,200/-. Nonetheless, it is stipulated in Paragraph 18 of Annexure-I to the RACPS, the ACP availed under the ORSP, 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. At this juncture it is noteworthy to refer to Annexure-B enclosed WPC (OAB) No.21 of 2016 Page 48 of 71 to counter filed on behalf of the opposite party Nos.1 to 4:
"Office of the Divisional Forest Officer:
Berhampur Forest Division Office Order No. 96/2F(P/2) Dated, Berhampur, the 9th May, 2011 Consequent upon promotion of Sri Dibakar Acharya, Senior Clerk to the rank of Junior Accountant vide O.O. No.76/2F (NG) 631/2010, dated 21.01.2011 of Principal Chief Conservator of Forests, Orissa and Office Order No.20/2F (G)-148/2010, dated 31.01.2011 of Regional Chief Conservator of Forests, Berhampur Circle is allowed one increment @ 3% raising his pay from Rs.13600/- to Rs.14010/-under ORSP Rules, 2008 read with Memo No. PCC 51/2008/55371, dated 26.12.2008 of Finance Department Illustration No.7 with effect from 01.02.2011.
Date of Pay + Grade Amount of Pay fixed on Date of joining Pay as on increment promotional increment 01.02.2011 @ 3% of post Pay + (Pay + Grade Pay Grade Pay) 01.02.2011 13600 410 14010 01.02.2012 (AK Jena) Divisional Forest Officer Berhampur Division"
11.5. With regard to objection as to availing ACP prior to 01.01.2013 and treatment of the same towards consideration of RACPS, as raised by the opposite WPC (OAB) No.21 of 2016 Page 49 of 71 parties, has been explained in the decision of this Court in the case of State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839:
"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.' ***"
11.6. As the post of Junior Accountant merged with the post of Senior Assistant with effect from 01.01.2013 and even prior thereto the scale of pay of both the posts were identical, there is no financial upgradation. Regard in this respect may be had to State of Odisha Vrs. Bihari Lal, 2016 SCC OnLine Ori 333, wherein it has been observed as follows:
WPC (OAB) No.21 of 2016 Page 50 of 71"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.
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 WPC (OAB) No.21 of 2016 Page 51 of 71 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."
11.7. Said Bihari Lal's case (supra), was upheld by the Supreme Court on 23rd August, 2017 by dismissal of SLP(C) Diary No.20358 of 2017 (State of Odisha Vrs. Bihari Lal Barik), with the following Order:
"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."
11.8. 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.
11.9. However, this Court wishes to take cognizance of Government of Odisha in Finance Department WPC (OAB) No.21 of 2016 Page 52 of 71 Resolution No. 26274-- FIN-PCC-MEET-0001/2012/F., dated 08.08.2013, which reads as under:
"Government of Odisha Finance Department **** RESOLUTION No. 26274-- FIN-PCC-MEET-0001/2012/F., dated 08.08.2013 Sub.: Revision of grade pay in certain posts with Grade Pay of Rs. 4200 and Rs.4600.
Under ORSP Rules, 2008, the revision of pay has been effected on scale to scale basis with merger of scales of pay under the ORSP Rules, 1998 in Pay Bands. The pay bands constitute different Grade Pay. In Grade Pay Rs.4200 pertaining to Pay Band PB-2, seven pay scales existing under the ORSP Rules, 1998 were merged. As a consequence of such merger, some of the promotional scales existing under the previous pay rule are now placed in Pay Band PB-2 with same Grade Pay of Rs.4200.
2. The introduction of Revised Assured Career Progression (RACP) Scheme in Finance Department Resolution No.3560, dated 06.02.2013 with effect from 01.01.2013 envisage three financial upgradations at an interval of 10/20/30 years of the service career with stipulation in the said FD Resolution. As per the said Finance Department Resolution, services having defined line of promotion shall avail the Pay Band/Grade Pay of next promotional hierarchy. Due to same Grade Pay existing in many of the cadres having defined line of WPC (OAB) No.21 of 2016 Page 53 of 71 promotion the Grade Pay does not change as per the Scheme dated 06.02.2013 thereby creating resentment among such cadres. The Service Association of various cadres have been representing for removal of such anomaly.
3. After careful consideration of the recommendation of Anomaly Committee and in exercise of powers conferred under Rule 19 of ORSP Rules, 2008, Government have been pleased to incorporate the following changes in the Grade Pay of posts of different Departments mentioned at Table-I to mitigate such anomaly:
i) Enhance the promotional Grade Pay of the cadres from Rs.4200 to Rs.4600 where the feeder post Grade Pay is Rs.4200.
ii) With the feeder post grade pay of Rs.4200, where more than one promotional hierarchy is at Rs.4200 grade pay, the promotional posts shall be merged to one cadre with the grade pay Rs.4600. For example, the Section Officer, Level-Il and Level-I in Heads of Department cadre shall be merged to one cadre of Section Officer with grade pay Rs.4600.
iii) The grade pay of the next promotional post now carrying the grade pay of Rs.4600 shall be enhanced to Rs.4800. There are services in which the posts carrying grade pay of Rs.4600 gets filled up partly by direct recruitment and partly by promotion from a post now carrying grade pay Rs.4200. If the grade pay of such feeder posts is enhanced to Rs.4600 the grade pay of such promotional posts shall be enhanced to Rs.4800.WPC (OAB) No.21 of 2016 Page 54 of 71
Sl. Name of Feeder post 1st Promotional 2nd No. Departme (Rs.9300 - Post (Rs.9300- Promotional nt 34800 + GP 34800 + GP Rs. Post Rs.9300-
Rs.4200) 4600)
34800 + GP
Rs.4800)
1 2 3 4 5
1 Home ASO SO Desk Officer
(Sectt/ (Sectt/
Governor's Sectt Governor's Sectt
OLA/OHC OLA/OHC
Senior Personal Private
Stenographer Assistant Secretary
Supdt. Level-II Supdt. Level-I --
(Issue) (Issue)
Asst. Jailor Jailor Jail
Superintende
nt
2 P.R. PA/GPEO ABDO/SDPO DPO
(Promotional)
3 W&CD ICDS Supervisor CDPO DSDO
(Promotional)
SEO/SA ADSWO DSWO
(Promotional)
4 S&ME Assistant Head Master Head Master
Teacher (Cl-III) (Cl-II)/DI
(Promotional)
5 Transport Sub-Inspector Inspector (Tr) --
(Tr)
6 R&DM R.I. Revenue Jr.
Supervisor Consolidation
Officer
(Promotional)
7 ST&SC WEO ADWO DWO
Devp. (Promotional)
8 Finance Audit (CCA) Asst. Audit Audit Officer
Officer/ Audit
Audit (LFA) Superintendent
9 Cooperati Inspector of SARCS ARCS
on Coop. Soc. (Promotional)
10 HOD Senior Assistant SO, L-I & L-II Establishment
both Officer
redesignated as
Section Officer
WPC (OAB) No.21 of 2016 Page 55 of 71
4. This resolution shall take effect from dt. 01.01.2013. The financial benefits shall be with prospective effect.
Order: Ordered that the Resolution be published in Extra-ordinary issue of the Odisha Gazette.
By order of the Governor Sd/-
(U.N. Behera) Addl. Chief Secretary to Government"
11.10. Thus, the Government of Odisha also admitted that different departments had different anomaly peculiar to the posts available in the respective department. In the Forest and Environment Department also such anomaly was existing, which appears to have been sorted out by introducing Notification dated 01.03.2016 with effect from 01.01.2013. Thus, for no fault of the employee, the legitimate dues could not be withheld by the Government.
11.11. In the present, since the post of Senior Clerk got merged with the post of Junior Accountant vide Notification dated 01.03.2016 with effect from 01.01.2013, and the petitioner, ever since he became Junior Accountant in the year 2011 was drawing same scale of pay as was getting while working in the post of Senior Clerk, there is no actual financial upgradation. So, though the petitioner completed 30 years of service on 25.02.2009 since 26.02.1979 (entry into the Government service), till 01.02.2011, when he joined as WPC (OAB) No.21 of 2016 Page 56 of 71 Junior Accountant, from the post of Senior Clerk (promoted from Lower Division Clerk in 1993), has not been allowed due RACP.
11.12. The above view can find support from the following observation made in State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839:
"36. In the present case, the converse is true. What happened on 13th October 2009 was not really a promotion as is contended by the State. It was across the board and it was a re-fitment of the post of ACF as Group-A (Jr. Branch) with the promotion avenue to the post of DFO remaining intact. ACF was still the entry level grade. In order to remove the anomaly between the Forest Ranger being a Group B post, the post of ACF was re-designated as Group-A (Jr. Branch). This was en masse across the board. Therefore, there is merit in the contention of the Opposite Parties that this type of upgradation due to re-structuring is purely related to grant of financial benefit without involving any element of promotion. All the promotion avenues remained intact, i.e. the promotional avenue from Forest Ranger to ACF and ACF to DFO. This was, therefore, in terms of the law explained in Bharat Sanchar Nigam Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC 510, a mere upgradation without any promotional benefit.
37. Upon carefully examining the Resolution dated 6th February, 2013, it is seen the above upgradation effected in 2009 as a result of restructuring of the cadre cannot be construed to be an upgradation which would deny the benefit of the RACPS which in any event was WPC (OAB) No.21 of 2016 Page 57 of 71 not in force at the relevant point in time. For the same reason, the TBA granted earlier in 2005 cannot be considered to be as an upgradation which would deny the Opposite Parties the benefit of the RACPS. In other words, merely because the employee had availed a TBA or ACP prior to 2013, he cannot be denied to the benefit of the RACPS. Unless a person has already got a promotion within time period of 10, 20 and 30 years in the manner indicated, he cannot be denied the RACPS benefit."
12. In the case of Susanta Kumar Dash Vrs. State of Odisha, W.P.(C) No.18142 of 2020, this Court vide Judgment rendered on 22.09.2023, made the following observation, while deciding the question whether an employee having got promotion to the higher rank with higher Grade Pay, can again be eligible to get RACPS:
"24. As it appears, under the Revised Assured Career Progression Scheme (RACPS), there shall be three financial up-gradations under the RACPS, counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. An employee, if completed 10 years of service in the entry grade will be considered for 1st up-gradation under RACPS. An employee completing 20 years of service and has got only one upgradation either by promotion or by RACPS will be considered for the 2nd upgradation. Similarly, an employee completing 30 years of service and has got two upgradation either by RACPS or promotion or both will be considered for 3rd upgradation under RACPS. The financial upgradation under the RACPS WPC (OAB) No.21 of 2016 Page 58 of 71 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 w.e.f. 01.01.2008, subsequently RACPS was introduced by the State Government to give financial upgradation to its employees on completion of 10 years, 20 years and 30 years of service due to stagnation in the promotional benefits.
26. In Col. B.J. Akkara (Regd.) Vrs. Govt. of India, (2006) 11 SCC 709, the apex Court held that a "pay scale"
has basically three elements. The first is the minimum pay or initial pay in the pay scale. The second is the periodical increment. The third is the maximum pay in the pay scale. An employee starts with the initial pay in the pay scale and gets periodical increases (increments) and reaches the maximum or ceiling in the pay scale. Each stage in the pay scale starting from the initial pay and ending with the ceiling in the pay scale, when applied to an employee is referred to as "basic pay"
of the employee. Whenever the Government revises the pay scales, a fitment exercise takes place as per the principle of fitment (formula) provided in the rules WPC (OAB) No.21 of 2016 Page 59 of 71 governing the revision of pay so that the "basic pay"
in the old scale is converted into a "basic pay" in the revised pay scale.
27. In Gurpal Tuli Vrs. State of Punjab, 1984 (Supp.) SCC 716 = AIR 1984 SC 1901, the apex Court held that to be entitled to draw a particular pay scale the employee must fulfil the eligibility conditions whether by way of qualification or otherwise.
28. In St. Stephen's College Vrs. University of Delhi, (1992) 1 SCC 558 = AIR 1992 SC 1630, the apex Court held that public services comprise different grades of employees. It is basically a hierarchical system. The pay scales are framed in a descending order viz., the highest scale is prescribed for the highest grade and thereafter followed by lower scales attached to the descending grades of service. This is consistent with Article 14 of the Constitution which mandates that unequals cannot be treated as equals.
29. In State Bank of India Vrs. K.P. Subbaifah, (2003) 11 SCC 646 = AIR 2003 SC 3016, the apex Court has observed that since public service comprise different grades, different pay scales are provided for different grades and as such the pay of an employee is fixed with reference to a pay scale.
30. In State of U.P. Vrs. J.P. Chaurasia, (1989) 1 SCC 121 = AIR 1989 SC 19, the apex Court held that the fixation of pay scales is essentially an executive function. The answer to the question whether an officer or a group of officers is entitled to a particular scale depends upon several factors. It requires evaluation of duties and responsibilities of posts and should be determined by expert bodies like the Pay WPC (OAB) No.21 of 2016 Page 60 of 71 Commission. The Pay Commission would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it.
31. In Delhi Veterinary Association Vrs. Union of India, (1984) 3 SCC 1 = AIR 1984 SC 1221, the apex Court held that although it is primarily the function of the Pay Commission to determine matters relating to pay structure and to apply such norms as are proper and relevant, certain "basic principles" are to be followed in fixing pay scales of various posts and cadres in the Government service. The apex Court considered the matter both from the point of view of the employees and the employer. As far as the employees are concerned, the apex Court observed as follows:
'The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors.' As far as the employers are concerned the apex Court ruled as follows:WPC (OAB) No.21 of 2016 Page 61 of 71
'At the same time while fixing the pay scales, the paying capacity of the Government, the total financial burden which has to be borne by the general public, the disparity between the incomes of the Government employees and the incomes of those who are not in Government service and the net amount available for Government at the current taxation level, which appears to be very high when compared with other countries in the world, for developmental purposes after paying the salaries and allowances to the Government servants have also to be borne in mind. These are, however, not exhaustive of the various matters which should be considered while fixing the pay scales. There may be many others including geographical considerations.' Then the apex Court referred to certain broad and general considerations which a Pay Commission ought to have in mind:
'In an egalitarian society based on planned economy it is imperative that there should be an evolution and implementation of a scientific national policy of incomes, wages and prices which would be applicable not merely to Government services but also to the other sectors of the national economy. As far as possible the needs of a family unit have to be borne in mind in fixing the wage scales. The 'needs' are not static. They include adequate nutrition, medical facilities, clothing, housing, education, cultural activities etc. Any provision made while fixing the pay scales for the development of a society of healthy and well educated children irrespective of 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 WPC (OAB) No.21 of 2016 Page 62 of 71 taken to see that what is fixed today as an adequate pay scale does not become inadequate within a short period by providing an automatic mechanism for the modification of the pay scale.'
32. In Secretary, Finance Department Vrs. West Bengal Registration Service Association, 1993 Supp. (1) SCC 153 = AIR 1992 SC 1203, the apex Court held that ordinarily a pay structure is evolved keeping in mind several factors e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational and technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capability to pay, etc. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well."
12.1. After discussing broad contours of RACPS, this Court in the said case Susanta Kumar Dash (supra) came to hold as follows:
"38. Needless to say, since the petitioner has already availed the benefit of RACP and in fact the same has been extended to him w.e.f. 01.01.2013, even if the petitioner was promoted to the post of Duftary, no such further benefit can be granted to him because he has already reached the scale of pay admissible WPC (OAB) No.21 of 2016 Page 63 of 71 to the post of Duftary by way of RACP and, as such, no double benefit can be available to the petitioner so far as the scale of pay is concerned. As the petitioner has already exercised his option to avail RACP benefit and the same has already been extended to him w.e.f. 01.01.2013, merely because subsequently he got promotion to the post of Duftary on 12.03.2014, in which he joined on 02.04.2014, he once again cannot be entitled to get promotional scale of pay in the post of Duftary, as he has already received such benefit w.e.f. 01.01.2013. Thereby, the representation filed by the petitioner on
13.09.2017 has been rightly considered and rejected by the learned District Judge, Sonepur vide order impugned dated 27.01.2020."
12.2. The conspectus of case laws discussed above makes it clear that no double benefit can be availed under the Scheme. In the instant case, it is noteworthy to reiterate that it is not disputed that having got promoted to the post of Senior Clerk on 10.12.1993 from the post of Lower Division Clerk, the petitioner joined in the post of Junior Accountant in the same scale of pay as was attached to the post of Senior Clerk. This is very much manifest from the Notification of the Government of Odisha in Forest and Environment Department bearing No.FE-FE3-FE-0485-2015-- 4185/F&E, Dated 01.03.2016, which clearly stated thus:
"The staffing pattern of the Divisional Forest Ministerial cadre at present consists of Junior Clerk, Senior Clerk, Junior Accountant and Head Clerk. The scale of pay of Senior Clerks and Junior Accountants are same and WPC (OAB) No.21 of 2016 Page 64 of 71 identical in PB-I i.e. Rs.5200-20200/- with GP Rs.2400/- Though the Junior Accountant is the promotional post of Senior Clerk, there is no financial benefit at the stage of 2 up-gradation under RACP on completion of 20 years on promotion to the post of Junior Accountant. ***"
12.3. Under aforesaid premises, it can safely be observed that the impugned Office Order No. 128/2F-NG-114/2014, dated 20.10.2014, issued by the Regional Chief Conservator of Forests, Berhampur Circle, cannot be countenanced. Furthermore, the reason contained therein that the petitioner is "not eligible to avail RACP as per Paragraph 15 of Finance Department No.3560, dated 06.02.2013 read with clarification issued at Sl. No.5 of Finance Department No.1738/F dt.20.01.2014 as he has forgone the promotion during the year 2012, which has been accepted vide Office Order No.111 dated 12.07.2012 of Regional Chief Conservator of Forests, Berhampur Circle" in view of recommendation of the Screening Committee, does not have legs to stand inasmuch as the promotion has been forgone by him in the year 2012 after he became entitled to financial upgradation under the RACPS on completion of 30 years of service, i.e., 25.02.2009 counted from the direct entry grade in a single cadre in absence of promotion.
13. On the score of craving for direction to the opposite parties for extending the benefit of RACPS on completion of 30 years of service, i.e., Grade Pay of Rs.4,200/- to Rs.4,600/-, it has been strenuously urged by the learned WPC (OAB) No.21 of 2016 Page 65 of 71 Additional Government Advocate that in view of Paragraph 16 of Annexure-I of the Resolution, dated 06.02.2013 the petitioner cannot be extended the benefit as sought for. Careful reading of contents of Paragraph 16 of Annexure-I of the RACPS under the ORSP, 2008, makes it unambiguous that 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 the RACPS, as the employee has not been stagnated due to lack of promotional opportunities. Said paragraph further clarifies that 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 and 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.
13.1. In this respect, the General Administration Office Memorandum dated 20.08.1999 and aforesaid Paragraph read juxtaposed, and applied to the instant facts and circumstances, it is manifest that the petitioner volunteered to forgo the promotion to the post of Head Clerk after 33 years of service, which was accepted by the competent authority on 12.07.2012 vide WPC (OAB) No.21 of 2016 Page 66 of 71 Office Order No.111/2F-NG-682/2012, dated 12.07.2012. As is transpired from admitted position, the entry of the petitioner into the Government service was on 26.02.1979 and he completed 10 years of service on 25.02.1989, 20 years of service on 25.02.1999 and 30 years of service on 25.02.2009. It is fact on record that he got promotion to the rank of Senior Clerk from Junior Clerk on 10.12.1993, i.e., between 10 years and 20 years of service. The petitioner got 1st ACP on 10.12.2008 in the post of Senior Clerk, i.e., between 20 years to 30 years of service. So, he has not been offered with promotion to the post of Head Clerk on the date of eligibility for the next upgradation, i.e., 25.02.2009, but he was considered for promotion to the post of Head Clerk in the year 2012, i.e., after around 33 years of service, which is much after he was entitled to financial upgradation in the year 2009.
13.2. Only objection raised by Sri Lalatendu Samantaray supported by Sri Rabi Narayan Mishra, learned Additional Government Advocates that in terms of Paragraph 16 contained in Annexure-I of the RACPS, since the petitioner had forgone his promotional avenue of becoming Head Clerk on his volition by representation dated 18.06.2012, he is not entitled to any further benefit under said Scheme. It is seen on scrutiny of said Paragraph 16 that, the condition stipulated therein is that no financial upgradation under RACPS is available WPC (OAB) No.21 of 2016 Page 67 of 71 to the Government employee "if a regular promotion in due course is refused by the employee before becoming entitled to a financial upgradation". Perusal of the impugned Office Order dated 20.10.2014 (vide Annexure-F to the original application) shows that while the petitioner is stated to be "not eligible", the Screening Committee appended the following reason:
"Not eligible to avail RACP as per Paragraph 15 of Finance Department Notification No.3560, dated 06.02.2013 read with clarification issued at Serial No.5 of Finance Department No.1738/F, dated 20.01.2014 as he has forgone the promotion during the year 2012, which has been accepted vide Office Order No. 111, dated 12.07.2012 of Regional Chief Conservation of Forests, Berhampur Circle."
13.3. Such reason is inchoate as the same does not reveal as to whether the refusal of "regular promotion in due course" by the petitioner was "before becoming entitled to a financial upgradation". Therefore, his entitlement for RACP on completion of 30 years of service, i.e., 25.02.2009, is required to have re-look in the light of provisions made in Paragraph 16 of Annexure-I to the RACPS, which speaks that "if a regular promotion in due course is refused by the employee before becoming entitled to a financial upgradation", under such eventuality there shall be no financial upgradation. In the present case, it is ex facie on record that the promotion to the rank of "Head Clerk" was not during WPC (OAB) No.21 of 2016 Page 68 of 71 the year 2009, when he completed 30 years of service on 25.02.2009. The petitioner, having refused promotion in the year 2012, his case deserves to be considered by the competent authority whether the refusal was "before becoming entitled to a financial upgradation".
13.4. At this stage by placing reliance on the clarification of Finance Department vide Memo No.1738-PCC(A)- 37/2013/F, dated 20.01.2014, that the benefit under RACP Scheme shall be deferred to the extent of period of debarment from the date of actual entitlement when the employee forgoes regular promotion, the learned Additional Government Advocate(s) submitted that since the petitioner has permanently forgone promotion, he is not entitled to the benefit of upgradation under the RACPS.
13.5. Suffice it to say in this regard that the clarification cannot override the statutory notification, i.e., Resolution dated 06.02.2013. This Court has already taken such view in State of Odisha Vrs. Bikash Ranjan Dash, 2021 SCC OnLine Ori 1839 with reference to such clarification. It is fact on record that the petitioner has completed 30 years of service on 25.02.2009 and thereby he became entitled for the benefit of upgradation under the RACPS. Though the refusal for promotion to the post of Head Clerk was accepted on 12.07.2012, it is borne on record that he has not refused the promotional post "before WPC (OAB) No.21 of 2016 Page 69 of 71 becoming entitled to a financial upgradation". The opposite parties have thoroughly misconstrued the purport of Paragraph 16 of Annexure-I appended to the RACPS.
CONCLUSION & DECISION:
14. Given the position of law propounded by the Hon'ble Supreme Court of India and clarified in the decisions rendered by this Court referred to supra, in the light of the discussions made above and in view of reasons assigned, taking into consideration the documents forming part of the pleadings, this Court finds that the case of the petitioner has not been considered in right perspective. Therefore, the Office Order No.128/2F-NG- 114/2014, dated 20.10.2014 issued by the Regional Chief Conservator of Forests, Berhampur Circle, deserves to be set aside, which this Court does. It is, thus, necessary to issue following directions:
i. The opposite parties are directed to consider eligibility of the petitioner in terms of the Revised Assured Career Progression Scheme promulgated under the Odisha Revised Scale of Pay Rules, 2008 afresh in the light of the discussions made in the foregoing paragraphs;
ii. The opposite parties are directed to take a decision
on the claim of the petitioner vide
WPC (OAB) No.21 of 2016 Page 70 of 71
representations/grievance petitions dated
24.06.2016 and 17.09.2016 taking into
consideration the request vide Memo No.3410/2F, dated 24.05.2016 made by the Divisional Forest Officer, Berhampur Forest Division and pass appropriate order thereon;
iii. The aforesaid exercise is directed to be completed within two months from today.
15. In fine, the Writ Petition/Original Application stands disposed of in terms of observations and directions as above, but in the circumstances without any order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: SENIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ODISHA, CUUTACK Date: 11-Dec-2023 19:03:45 High Court of Orissa, Cuttack The 11th December, 2023//MRS/Laxmikant WPC (OAB) No.21 of 2016 Page 71 of 71