Prakash Chandra Rath vs State Of Odisha & Others
2023 Latest Caselaw 11988 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.30913 of 2023

                 Prakash Chandra Rath                    ....             Petitioner
                                                           Mr. P.K.Mishra, Advocate

                                             -versus-

                 State of Odisha & others                ....      Opposite Parties
                                                           Mr. Tarun Patnaik, A.S.C.

                                          CORAM:

                             JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 05.10.2023
    01.     1.      This matter is taken up through Hybrid Arrangement (Virtual
            /Physical Mode).

2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate for the State. Perused the Writ Petition as well as the documents annexed thereto.

3. The present Writ Petition has been filed with the following prayer :

"It is prayed, therefore, that this Hon'ble Court may graciously be pleased to;

(i) Direct the Opposite Parties, more particularly the Opposite Party No.4 to grant the petitioner the G.P. of Rs.4600/- with P.B.-2 towards 2nd RACP w.e.f. 01.01.2023 under Annexure-4 so far as it relates to sanction of 2nd RACP of Petitioner and re-fix and revise the pay of petitioner within a stipulated period of time;

(ii) Further be pleased to direct the Opposite Parties to disburse the arrears in favour of the petitioner within a stipulated period of time And pass such other order(s), direction(s) as deem fit and proper to the facts and circumstances of the case to give complete relief to the petitioner."

// 2 //

4. Learned counsel appearing for the petitioner, at the outset submitted that initially the petitioner joined in the Govt. service as VFW on 24.20.1989. While the petitioner was continuing in the aforesaid posts, on 09.02.2009 the Govt. of Odisha took a decision to merge the VFW with Forester in the identical scale of pay. By 01.01.2013 the petitioner has already completed 20 years of service and as such in view of the RACP Scheme introduced by the Finance Department Govt. of Odisha the petitioner was entitled to grade pay at Rs.4,600/- with P.B-2, with effect from 01.01.2013 towards 2nd RACP.

However, the same was not sanctioned in favour of the petitioner due to pendency of the litigation before the Odisha Administrative Tribunal involving the very same issue. When the learned counsel for the petitioner also contended that on 03.08.2019 the erstwhile Forest and Environment Department Govt. of Odisha issued an instruction vide letter No.14892 dated 03.08.2019 thereby instructing to sanction grade pay 2,400, 4600 and 5400 towards 1st and 2nd and 3rd RACP in favour of forester as the same are attached to the promotional post of Forester in the hierarchy that is Deputy Ranger Forest Ranger and ACF.

5. The learned counsel for the petitioner further contended that Opposite Party No.4 vide office order No. 61 dated 27.05.2022 under Annexure- 4 has allowed Grade Pay of 2800/- towards 2nd RACP instead of Grade Pay of Rs. 4600/- with PB-2 and that such decision of OP No. 4 is contrary to the settled position of law as well as the instruction issued in this regard.

6. In course of argument learned counsel for the petitioner referred to the order passed in W.P.(C) No.24975 of 2023 disposed on 10.08.2023 in matter of Bharati Kaparda Vs. state of Odisha & Ors.

7. Learned counsel for the petitioner further drawing the attention of this Court to para 7 of the order dated 10.08.2023 in W.P.(C) No. 24975/2023, submitted before this court that while extending the // 3 //

RACP benefits to the Foresters, Forest Guards, Deputy Rangers, the Additional Secretary to Government has excluded the ex-VFWs from the purview of the Finance Department Resolution dated 06.02.2013. In such view of the matter, learned counsel for the petitioner submitted that such conduct of the Government in excluding the ex-VFWs from the purview of Resolution dated 06.02.2013 is highly illegal, discriminatory and arbitrary. In this context, it was also submitted that after merger of the ex-VFWs cadre with the Foresters Cadre, there is only one single cadre which has been rightly taken note of by the PCCF while issuing the letter dated 25.11.2013. Therefore, the discrimination by OP No. 4 is highly illegal and unsustainable in law, along with the fact that the same also infringes upon Article-14 & 16 of the Constitution of India.

8. Learned Additional Government Advocate on the other hand submitted that the Petitioner initially joined as VFW. Thereafter, pursuant to the amendment in the rules, the cadre of VFW was abolished and the ex-VFWs have been re-designated as Foresters. Thereafter, their entry in the cadre of Foresters shall be reckoned from the date they were merged in the Forester Cadre. Accordingly, the Government has taken a conscious decision not to include the Petitioner and similarly situated many other VFWs, who were merged in the Forester Cadre pursuant to the amendment in the Rules. In such view of the matter, learned Additional Government Advocate contended before this Court that exclusion of VFWs from within the purview of Finance Department Resolution dated 06.02.2013 by virtue of letter of the Government dated 24.05.2023 is not illegal. Moreover, it was submitted before this Court that the writ application filed by the present Petitioner is devoid of merit and accordingly the same should be dismissed.

9. Learned counsel for the petitioner further contended that // 4 //

similarly situated some other VFWs approached the Odisha Administrative Tribunal by filing O.A. No.1374 of 2018 seeking financial up-gradation under the RACP scheme by taking into consideration their past services as VFWs, the Tribunal vide order dated 09.01.2019 has held that such Petitioners are entitled to the financial up-gradation by taking into consideration their services rendered to the Government as VFWs. Challenging the decision of the Tribunal dated 09.01.2019, the State-Opposite Parties had approached this Court by filing a writ petition bearing W.P.(C) No.39270 of 2021. A Division Bench of this Court vide order dated 08.03.2022 by referring to a judgment in the case of State of Odisha & others vs. Surama Manjiri Das & others (W.P.(C) No.15763 of 2021) dismissed the writ application on the ground of latches.

10. The order passed in Surama Manjiri Das & Ors. supra by a Division bench of this Court was assailed before the Hon'ble Supreme Court in SLP(C) Diary No.9259 of 2023. The Hon'ble Supreme Court dismissed the said SLP vide order dated 05.04.2023. Similarly, in another matter in the State of Odisha & others vs. Debendra Nath Patra in SLP (C) Diary No.15046 of 2023, the Hon'ble Supreme Court vide order dated 28.04.2023 has dismissed the Special Leave Petition preferred by the State-Opposite Parties. Such orders have already been implemented by the Opposite Parties in the meantime under Annexure- 10 order dated 28.06.2023.

11. Having heard the learned counsels appearing for the respective parties and on a careful consideration of their submission as well as the materials on record, this Court is of the considered view that the issue involved in the present writ application requires re-consideration by the authority in the light of the discussion made hereinabove, Particularly, keeping in view the fact that after merger, the PCCF, Odisha vide his letter dated 25.11.2013 has categorically stated that, they will be treated // 5 //

as Foresters for all practical purpose and accordingly their financial up- gradation under the RACP scheme shall be calculated. Therefore, this Court is of the considered view that the order under Annexure-4 dated 27.05.2022, so far as it relates to 2nd RACP, needs to be modified to Grade Pay of Rs.4600/-. Accordingly OP No. 4 is directed to modify office order No.61 dated 27.05.2022 under Annexure- 4 keeping in view the analysis made hereinabove and pass necessary orders within a period of 2 months from the date of production of a certified copy of this order and the benefits as the Petitioner would be entitled to, under the Finance Departmental Resolution dated 06.02.2013, shall be extended in his favour within a period of six weeks thereafter.

12. With the aforesaid observations/ directions, the writ application stands disposed of.

Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra ) Judge

Debasis

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 11-Oct-2023 20:05:11