Subarnalata Panda vs State Of Odisha & Others
2022 Latest Caselaw 2269 Ori

                 ORISSA HIGH COURT: CUTTACK

                    WPC (OA) No.2018 of 2017

      (An application under Articles 226 and 227 of the
      Constitution of India)
                             ---------------

      Subarnalata Panda             .....          Petitioner


                                 -Versus-

      State of Odisha & others      .....         Opp. Parties


      Advocate(s) appeared in this case:-
      ________________________________________________________
      _
      For Petitioner    : M/s. S.N. Pattnaik,
                           U.K. Patanaik, C.S. Panda,
                           K.C. Panigrahy, S. Mohapatra.

      For Opp. Parties  : Mr. H.K. Panigrahi,
                           Additional Standing Counsel
      _______________________________________________________

           CORAM
              JUSTICE SASHIKANTA MISHRA

                            JUDGMENT

19th April, 2022

SASHIKANTA MISHRA, J. Feeling aggrieved by the order

passed by opposite party no.2 in withdrawing the RACP

benefit granted in her favour, the petitioner has filed the

present writ application with prayer to quash the same

and for a direction to the authorities to continue to pay

the benefit as per her pay fixation done earlier.

2. The brief facts of the case are that the petitioner

joined as Library Assistant in H.K.M. State Library,

Bhubaneswar on 10.05.1991. As per the erstwhile

Tourism, Sports and Culture Department Resolution No.

8341 dated 22.08.1989, guidelines and qualifications for

appointment to the post of Librarians was issued as per

which, the post of Librarian Class-II was to be filled up

through OPSC. The existing six numbers of vacant posts

of Librarian Class-III were to be filled up through direct

recruitment by candidates having degree in Library

Science with five years experience with preference being

given to candidates possessing higher qualification and

experience. Departmental candidates were also allowed to

apply for the said post. The future vacant posts of the

newly created Librarian Class-III were to be filled up from

amongst Asst. Librarians by way of promotion. The post

of Asst. Librarian was to be filled up by the candidates

having degree in Library Science with the stipulation that

50% of such posts are to be filled by way of promotion

from eligible departmental candidates.

The petitioner acquired qualification in B. Library

and Information Science and M.A. in History examination

as an in-service candidate and thus, was qualified for

appointment to the post of Asst. Librarian. It is stated

that the post of Library Assistant is the feeder post for

promotion to the post of Asst. Librarian as per the

Resolution No. 22.08.1989. After coming into force of the

Revised Assured Career Progression Scheme (RACPS) by

the Government in Finance Department Resolution No.

35560/F dated 06.02.2013, the petitioner was granted

the benefit in two stages as per the recommendation of

the duly constituted screening committee vide order

dated 05.11.2014 by raising her grade pay to Rs.4600/-

with effect from 01.01.2013. Surprisingly, vide order

dated 27.11.2017 issued by opposite party no.2, the said

benefit was withdrawn by downgrading the grade pay of

the petitioner from Rs.4600/- to Rs.2200/-. It is further

stated that the 2nd RACP benefit was rightly extended to

the petitioner as she had completed 27 years of

continuous service in one grade in a cadre without being

considered or given promotion to the next higher post.

Thus, the order dated 27.11.2017, which is enclosed as

Annexure-7, is impugned in the present writ petition.

3. A counter affidavit has been filed by the opposite

parties no. 1 and 2, wherein it is stated that Librarian

Class-II is not a promotional post of Librarian Class-III,

rather it is a direct recruit post, which is being filled up

by OPSC. The averment in the writ petition that 50% of

the vacant posts of Asst. Librarian in H.K.M. State

Library shall be filled up by way of direct recruitment and

rest 50% by promotion from amongst the departmental

candidates was specifically denied on the ground that the

resolution dated 22.08.1989 does not prescribe so. It is

further pleaded that the post of Library Assistant is not

the feeder post of Asst. Librarian. The decision to

downgrade the grade pay vide Annexure-7 is sought to be

justified by stating that as per FD clarification dated

20.01.2014, RACP is confined to a cadre only and since

the post of Library Assistant does not have any cadre

rule, the petitioner should have been given grade pay of

Rs.2000/- and Rs.2200/- on completion of 10 years and

20 years of service, but was wrongly allowed grade pay of

Rs. 4200/- and Rs.4600/-. It is further stated that the

scale of pay of Librarians continuing in Government

Colleges under Higher Education Department cannot be

made applicable to Librarians under other departments.

Since the grade pay was wrongly fixed, it was rightly

downgraded in order to recover the excess payment made

thereby.

4. Heard Mr. S.N. Pattnaik, learned counsel for the

petitioner and Mr. H.K. Panigrahi, learned Addl. Standing

Counsel appearing for the State.

5. Mr. Pattnaik has contended at the outset that

during pendency of the writ petition, the petitioner has

already been promoted to the post of Asst. Librarian. It is

further submitted that one Amiya Kumar Dhal, who is

similarly placed as the petitioner and had been promoted

along with the petitioner to the post of Asst. Librarian,

had challenged the reduction of his grade pay granted

towards 2nd RACP before the erstwhile Odisha

Administrative Tribunal in O.A. No. 600 of 2017. The said

O.A. along with batch of cases was allowed by order

dated 26.04.2018, whereby, the learned Tribunal held the

applicants therein to be entitled to the grade pay of

Rs.4600/- towards 2nd RACP w.e.f. 01.01.2013. The said

order being challenged by the State before this Court in

W.P.(C) No. 8798 of 2018 was confirmed by order dated

21.08.2019, Mr. Pattnaik submits that the case of the

petitioner is squarely covered by the decision of the

Tribunal as upheld by this Court. Mr. Pattnaik has also

referred to another decision rendered by this Court in the

case of Ashis Kumar Pattanaik and others vs. State of

Odisha and another (in WPC(OAC) No. 2981 of 2018

decided on 09.03.2022) wherein it was held that

clarification issued by the Government in Finance

Department memo dated 20.01.2014 nowhere prescribes

that the benefits under the RACP scheme cannot be

granted without a cadre rule. Mr. Pattnaik contends that

the petitioner's case is also squarely covered by the ratio

laid down in the aforesaid decision.

6. Per contra, Mr. H.K. Panigrahi has argued that

firstly, the post Library Assistant cannot be treated as the

feeder post for promotion to the post of Asst. Librarian

and secondly, the Librarians working in the Higher

Education Department have their own cadre rules and

therefore, they stand on a different footing altogether.

Since admittedly, there is no cadre rule in so far as the

librarians working in the H.K.M. State Library are

concerned, the RACP benefit as claimed cannot be

granted.

7. As it appears by order dated 05.11.2014 passed

by the opposite party no.2, enclosed as Annexure-5, the

petitioner was granted the benefit of first and second

RACP by raising her grade pay to Rs.4200/- and

Rs.4600/-. A perusal of the impugned order under

Annexure-7 reveals that grade pay of the petitioner was

refixed to Rs.2200/- from 01.01.2013 with the further

stipulation that the excess amount already drawn due to

wrong fixation of pay shall be recovered in equal monthly

installments subject to maximum of 20 months or

depending on her length of her superannuation.

8. In the case of Amiya Kumar Dhal (supra) a

Division Bench of this Court has held that even if it is a

mistake, the procedure is required to be followed before

withdrawal of the benefit granted to a government

employee. Undisputedly, no such procedure was followed

before issuance of the impugned order. Secondly, the

reason for refixation of the pay of the petitioner has not

been mentioned in the impugned order. The opposite

parties in their counter affidavit have attempted to justify

the issuance of the impugned order on the ground that in

the absence of cadre rule, the petitioner is not entitled to

RACP benefits granted to her vide order under

Annexure-5.

9. This Court in the case of Ashish Kumar

Pattanaik (supra) has already held that non-availability

of the cadre rule cannot be the ground to deprive the

eligible employees from the RACP benefits.

10. In so far as the ground that there are no

promotional avenues for the Library Assistant in the

S.K.M. State Library, this Court finds that the learned

Tribunal in its order passed in the case of Amiya Kumar

Dhal and batch held that there is promotional avenue for

the Library Assistant against 50 % quota to fill up the

post of Asst. Librarian and Librarian Class-III and thus,

the contention of the State that there are no promotional

avenues, was not accepted. The said order of the

Tribunal, as already stated, was confirmed by a Division

Bench of this Court.

11. From the forgoing discussion therefore, it is clear

that the impugned order under Annexure-7 in refixing

the pay of the petitioner by downgrading her grade pay as

granted under RACP w.e.f. 01.01.2013 cannot be

sustained in the eye of law.

12. Resultantly, the writ petition is allowed. The

impugned order under Annexure-7 is hereby quashed. It

is held that the RACP benefits already granted to the

petitioner by order under Annexure-5 are required to be

continued.

................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 19th April, 2022/ A.K. Rana