Afr Sanjay Pradhan vs State Of Odisha And Others
2021 Latest Caselaw 6754 Ori

                       ORISSA HIGH COURT: CUTTACK


                          WPC(OAC) NO. 4298 of 2015

         In the matter of an application under Articles 226 and 227 of
         the Constitution of India.
                                  ---------------

AFR      Sanjay Pradhan                        ......      Petitioner

                                       -Versus-

         State of Odisha and others            .....      Opp. Parties


           For Petitioner       : M/s. J. Sengupta, G. Sinha
                                  and D.K. Panda, Advocates

           For Opp. Parties :    Mr. B. Prusty,
                                 Standing Counsel for
                                 S & ME Department


         P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

DECIDED ON : 01.07.2021

DR. B.R. SARANGI, J. The petitioner, who is working as Junior

Clerk in the office of Block Education Officer, Banki-II

(Dumpada), Cuttack, has filed this writ petition seeking to

quash the order dated 05.08.2015 under Annexure-3 passed // 2 //

by opposite party no.3 - Block Education Officer, Banki-II

(Dampada), Cuttack in canceling the Revised Assured Career

Progression benefit extended to him, vide order no. 128 dated

23.10.2013 under Annexure-2, and to issue direction to the

opposite parties to extend such benefit to him.

2. The factual matrix of the case, in brief, is that

the petitioner was duly selected in recruitment test and

accordingly sponsored to the office of the Circle Inspector of

Schools, Cuttack-III Circle, Jajpur and vide office order dated

23.03.1991 he was appointed as a Junior Clerk in the office

of the Principal DIET, Dolipur, Cuttack, pursuant to which

he joined on 02.04.1991. While he was continuing in service,

he passed Paper-I of Group-A and Paper-I of Group- B of the

Annual Departmental Examination of Accounts conducted by

the Board of Revenue, Odisha, which was held on

26.12.1995 and 27.12.1995 respectively.

2.1 With the commencement of Orissa Revised

Scales of Pay Rules, 1998, which inter alia provided that in

case a person is allowed to continue in a single post or grade, // 3 //

in which he was originally appointed, then he will be entitled

to get a Time Bound Advancement Scale of Pay. In

compliance to the same, the petitioner was allowed to get his

pay fixed under the Time Bound Advancement Scales of Pay

in the year 2006 on completion of 15 years service.

2.2. The Orissa Revised Scales of Pay Rules, 2008

was introduced by the State Government, vide Finance

Department Notification dated 24th December, 2008, and the

same was given effect to from 1st January, 2006. According to

the provisions of the said Rules, the pay of the petitioner was

also got revised and he was also extended with the benefit

admissible to him.

2.3 Consequent upon implementation of the

Modified Assured Career Progression Scheme (MACPS) by the

Government of India, various service associations of the State

Government employees came up with memoranda to consider

implementation of the MACPS in respect to employees of the

State Government. Taking into account the uncertain

promotional avenues and career stagnation of the State // 4 //

Government employees, the Government after careful

consideration decided to implement a career advancement

scheme to be known as Revised Assured Career Progression

Scheme (RACPS) and the same was given effect to from

01.01.2013, which had come up by way of resolution dated

06.02.2013.

2.4. Under RACP scheme, it has been provided

that there shall be three financial up-gradations, counted

from the direct entry grade on completion of 10, 20 and 30

years of service in a single cadre, in absence of promotion. An

employee if completed 10 years of service in the entry grade

will be considered for 1st up-gradation under RACPS. An

employee completing 20 years of service and has got only one

up-gradation either by promotion or by RACPS will be

considered for the 2nd up-gradation. Similarly, an employee

completing 30 years of service and has got two up-gradations

either by RACPS or promotion or both will be considered for

3rd up-gradation under RACPS.

// 5 //

2.5. As per the provisions of the above scheme,

which has been issued vide resolution dated 06.02.2013, a

screening committee was constituted and on the basis of the

recommendation of the committee, vide its resolution dated

23.10.2013, the opposite party no.3 fixed the pay of the

employees of the Block Education Officer, Cuttack under

RACP scheme. The petitioner had got/earned no promotions

during his service career spanning from 1991 till 2013. So

his pay was fixed at Rs.10,090/- with grade pay of Rs.4200/-

as his 1st RACP, then at Rs, 10,460/- with grade pay of

Rs.4200/- as his 2nd RACP and consequent thereof, he was

allowed to draw the arrears. The petitioner while receiving the

benefit of RACP scheme available to him, on the basis of the

recommendation made by the screening committee, the

opposite party no.3 passed an order on 05.08.2015 in

withdrawing/canceling the benefit relying upon the

clarification of Finance Department letter dated 20.01.2014

and School and Mass Education Department letter dated

01.05.2014. Aggrieved thereby, the petitioner approached the

Orissa Administrative Tribunal, Cuttack Bench, Cuttack in // 6 //

O.A. No. 4298 (C) of 2015 and on abolition of the said

tribunal, the original application has been transferred to this

Court and registered as above.

3. Mr. D.K. Panda, learned counsel appearing

on behalf of Mr. G. Sinha, learned counsel for the petitioner

contended that the order dated 05.08.2015 in Annexure-3

withdrawing the benefit under RACP Scheme, which was

made available to the petitioner vide office order dated

28.10.2013 under Annexure-2, has been passed without

assigning any reasons and, thereby, the same cannot sustain

in the eye of law. While canceling the benefit admissible to

the petitioner, the opposite party no.3 had taken into account

the clarifications issued vide the Finance Department letter

dated 20.01.2014 as well as School and Mass Education

Department letter dated 01.05.2014, which are executive

instructions and the same cannot have retrospective

application. He further contended that in absence of any

reasons, with regard to withdrawal or cancellation of the

benefit extended to the petitioner, which directly or indirectly // 7 //

affects the conditions of service of the employees, the order

so passed in Annexure-3 cannot sustain in the eye of law.

More so, the cancellation has been made without applying

the principle of natural justice. It is further contended that

the petitioner has neither played any role in the matter of

fixation of pay under the RACPS nor can he made responsible

for furnishing any incorrect information, which had led the

concerned authority to commit the mistake by making the

higher payment to the petitioner. In other words, the

payment of higher dues to the petitioner was not on account

of any misrepresentation by him nor on account of any fraud

committed by him. If any mistake has been committed by the

employer in extending the monetary benefit to the petitioner,

for that the petitioner should not have been made to suffer. It

is further contended that the benefit so extended to the

petitioner should not have been cancelled or withdrawn, as

he was a "Group-C" employee, and thus any recovery, if

directed, cannot sustain in the eye of law. To substantiate his

contentions, he has relied upon the judgment of the apex // 8 //

Court in State of Punjab v. Rafiq Masih (White Washer)

etc., AIR 2015 SC 696.

4. Per contra, Mr. B. Prusty, learned Standing

Counsel for School and Mass Education Department, by

admitting the fact that the petitioner was continuing as

Junior Clerk by joining the post on 02.04.1991, vehemently

contended that his service condition is regulated by the

Odisha Ministerial Service (Method of Recruitment and

Conditions of Service of Clerks and Assistants in the District

Offices and Offices of the Heads of Departments) Rules, 1963

(in short the "Rules, 1963"). As per the Rule-9(a) of the

Rules, 1963, which provides that promotion to the post of

Senior Clerk shall be made from amongst the Junior Clerks,

who have passed the Preliminary Accounts Examination as

laid down in Rule-24. A Junior Clerk to be eligible for

consideration for promotion to the post of Senior Clerk is to

pass preliminary Accounts Examination and to the post of

Head Clerk he/she has to pass Group B paper III and Paper

IV conducted by the Board of Revenue, Odisha. As the // 9 //

petitioner had not passed the Group-A Paper-II and Group-B

Paper-IV of Accounts Examination, he was not eligible for

promotion. It is further contended that Paragraph-13 of the

RACP scheme unequivocally stipulates that grant of benefit

under the RACP scheme shall be subject to rules/guidelines

governing normal promotion. As the petitioner had not

passed all the four papers of departmental examination, was

ineligible for promotion to the promotional post of Senior

Clerk and Head Clerk, thus was also not eligible for the

benefit under RACP scheme, as there was no stagnation in

promotion. But he was allowed the benefit of RACP scheme

inadvertently, vide order dated 28.10.2013 at Annexure-2.

Consequently, the order under Annexure-3 has been passed

withdrawing such benefits, so far as it relates to the

petitioner, relying upon the clarification issued by the

Government of Odisha, Finance Department letter dated

20.01.2014 and School and Mass Education Department

letter dated 01.05.2014 explaining the interpretation made to

paragraph-13 of the RACP Scheme. Thereby, the authority // 10 //

has not committed any illegality or irregularity so as to

warrant interference by this Court.

5. This Court heard Mr. D.K. Panda, learned

counsel appearing on behalf of Mr. G. Sinha, learned counsel

for the petitioner; and Mr. B. Prusty, learned Standing

Counsel for School and Mass Education Department through

virtual mode; and perused the record. Pleadings having been

exchanged between the parties and with the consent of the

learned counsel for the parties, this writ petition is being

disposed of finally at the stage of admission.

6. For just and proper adjudication of the case in

hand, it is apt to mention here that in exercise of powers

conferred by the proviso to Article 309 of the Constitution of

India, the Governor of Odisha was pleased to make the rules

regulating the method of recruitment and conditions of

service of the persons appointed to the posts of clerks and

assistants of the District Offices and Offices of the Heads of

Departments, namely "The Odisha Ministerial Service

(Method of Recruitment and Conditions of Service of Clerks // 11 //

and Assistants in the District Offices and Offices of the Heads

of Departments) Rules, 1963". Rules 2(d), 9(a)(b) and 24,

being relevant for the purpose of this case, are extracted

below:

2. Definitions -

xx xx xx

(d) "Departmental Examination" means the Preliminary and Final Accounts Examination held by the Board of Revenue under Rule 163-A of the Bihar and Orissa Board's Miscellaneous Rules, 1928;

xx xx xx

9. Promotion to higher posts in the cadre of district offices - Promotion to the higher posts in the cadre of ministerial service of the district offices shall be subject to the passing of the departmental examinations and such other tests, if any, as may be ordered by the Head of the District Office in that behalf and shall be based on merit and suitability in all respects with due regard to seniority and be made in the following manner, namely:

(a) Promotion to the posts of Senior Clerk shall be made from amongst the junior clerks who have passed the Preliminary Accounts Examination as laid down in Rule 24 ;

(b) promotion to the posts of Head Clerks shall be made from amongst the senior clerks who have passed the Final Accounts Examination as laid down in Rule 24 on the basis of selection made by the selection board constituted in accordance with Rule 10;

xx xx xx

24. Departmental Examination - (1) The Junior Clerks of the District Offices and the Junior Assistants of the Offices of the Heads of Departments shall be required to pass the Preliminary Accounts Examination which is held by the Board of Revenue under Rule 163-A of the Bihar and Orissa Board's Miscellaneous Rules, 1928.

(2) The Senior Clerks of the District Offices and the Senior Assistants of the Offices of the Heads of // 12 //

Departments shall be required to pass the Final Accounts Examination which is held by the Board of Revenue under Rule 163-A of the Bihar and Orissa Board's Miscellaneous Rules, 1928.

(3) No one shall be exempted from passing the departmental examinations."

7. Admittedly, the petitioner was selected in the

recruitment test and was sponsored to the office of the Circle

Inspector of Schools, Cuttack-III Circle, Jajpur and vide letter

dated 23rd March, 1991 he was appointed as a Junior Clerk,

pursuant to which he joined on 02.04.1991. He availed the

benefit of Orissa Revised Pay Scale Rules, 1998 and also

Orissa Revised Pay Scale Rules, 2008, without any

promotional benefits from 1991 till 2013 for more than 22

years.

8. Taking into consideration the Modified

Assured Career Promotion Scheme, introduced by the

Government of India for Central Civilian employees, the

Government of Odisha revised the Assured Career

Progression Scheme for the State Government employees.

The relevant clauses-1, 6, 9 and 13 of such Scheme, which // 13 //

have been annexed to the Resolution dated 06.02.2013 under

Annexure-1, read as follows:

"1. There shall be three financial upgradations under the R.A.C.P.S., counted from the direct entry grade on completion of 10, 20 and 30 years of service in a single cadre in absence of promotion. An employee if completed 10 years of service in the entry grade will be considered for 1st upgradation under R.A.C.P.S. An employee completing 20 years of service and has got only one upgradation either by promotion or by R.A.C.P.S. will be considered for the 2nd upgradation. Similarly an employee completing 30 years of service and has got two upgradation either by R.A.C.P.S. or promotion or both will be considered for 3rd upgradation under R.A.C.P.S.

xx xx xx

6. On grant of financial upgradation under the Scheme, there shall be no change in the designation, classification or status. However, financial and certain other benefits which are linked to the pay drawn by an employee such as H.B.A., allotment of Government accommodation may be permitted.

xx xx xx

9. There shall be no further financial upgradation under R.A.C.P.S., if an employee has already availed three financial upgradations by way of R.A.C.P.S./Promotion.

Xx xx xx

13. If a financial upgradation under the R.A.C.P.S. is not allowed after 10 years in a Grade Pay and is deferred for the reason an employee being unfit or due to departmental proceedings, his case will be reviewed in subsequent years. In the matter of disciplinary/penal proceedings, grant of benefit under the R.A.C.P.S. shall be subject to rules/guidelines governing normal promotion. Such cases shall, therefore, be regulated under the provisions of the O.C.S. (C.C.A.) Rules, 1962 and instructions issued thereunder."

// 14 //

In pursuance of the resolution dated 06.02.2013 under

Annexure-1 and recommendation of the screening committee

vide resolution no.3 dated 23.10.2013, the benefits of 1st

RACP and 2nd RACP RACP Scheme were extended to the

petitioner, vide office order dated 28.10.2013 under

Annexure-2, where the name of the petitioner finds place at

serial no. 7, which is extracted hereunder:

Sl. Name of Scale Date of Date of Pay+ G Pay+ G Pay+ G Pay+ G Date of Date of R No the of pay 1st increme Pay will Pay will Pay will Pay will Increm Increme e . Incumbe appoint nt/optio be fixed be fixed be fixed be fixed ent in nt m nt and ment n if any after after after as per the in RACP a post held against taken to grant of grant of grant of option Existin r the post. avail 1st RACP 2nd RACP 3rd exercised g Pay k RACP with date with date RACP with date s with with dates date xx xx xx xx xx xx xx xx xx xx xx x

7. Sanjay 9300- 02.04.1 01.04.2 10090 10460/- 10460/ 01.04. 01.04.2 Pradhan, 34800 991 JC. 013 GP GP - 2014 014 Jr. Clerk, GP 2400/- 4200/- GP O/o 4200 01.04.20 01.04.13 4200/-

B.E.O., 13 01.04.1

Pursuant to such office order dated 28.10.2013, the benefits

have already been extended under RACP Scheme to the

petitioner. Consequentially, a right has accrued in favour of

the petitioner to enjoy the RACP Scheme of 2013.

9. By referring to counter affidavit and relying

upon a clarification issued by the Government in Finance