Dillip Kumar Mohanty vs State Of Odisha And Others
2023 Latest Caselaw 13422 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                W.P.(C) No.31563 of 2023
                 Dillip Kumar Mohanty                  ....            Petitioner
                                                 Mr.Siba Prasad Pati, Advocate
                                            -versus-
                 State of Odisha and others            ....     Opposite Parties
                                                      Mr.Tarun Patnaik, A.S.C.
                              CORAM:
                             JUSTICE A.K. MOHAPATRA

                                            ORDER

Order No.                                  31.10.2023
    02.     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 Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto.

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

" Under the aforesaid circumstances, the Petitioner humbly prays that this Hon'ble Court may graciously be pleased to,

i) Order/direct the Opp.Parties to sanction the Grade Pay of Petitioner with Rs.6,600/- in P.B.-3 scale of pay towards 3rd financial upgradation instead of Grade Pay of Rs.5,400/- under RACP scheme with effect from 01.012013 by quashing the orders at Annexure-6 and 8, And

ii) The Hon'ble Court be further pleased to pass appropriate orders directing the Opp.Parties to pay the consequential differential arrear salary and revised pensionary benefits with arrears as accrued in favour of the Petitioner, within a stipulated // 2 //

period,

iii) And be pleased to pass such other order/orders as deemed fit and proper in the facts and circumstances of the case,"

4. It is submitted by the learned counsel for the Petitioner that the Petitioner entered into Government service in the post of Fisheries Extension Officer with effect from 01.08.1981. Thereafter, as per the Resolution dated 01.06.2011 of the F&ARD department, the posts of FEO, DSF, Lab.Assistant and JFO were amalgamated and upgraded as Assistant Fisheries Officer with Grade Pay of Rs.4,600/- . Accordingly, Grade Pay of the Petitioner was fixed at Rs.4,600/- with effect from 01.06.2011. While this was the position on 06.02.2013 the Finance Department Resolution was introduced with the new RACP scheme. But prior to the aforesaid scheme was introduced, the Petitioner has retired from service on attaining the age of superannuation with effect from 31.01.2023. It is further contended by the learned counsel for the Petitioner that the Petitioner was erroneously granted 3rd RACP with Grade Pay of Rs.5400/- by 10.02.2017. Challenging the aforesaid erroneous order, the Petitioner earlier approached the Tribunal by filing O.A.No2799 of 2018. After abolition of the Tribunal, the matter was transferred to this Court and renumbered as WPC(OA) No.2799 of 2018. The aforesaid Writ Application was disposed of on 23.09.2022 with a direction to the Opposite Party No.1 to reconsider the case of the Petitioner. The Opposite Party No.1 pursuant to the order passed by this Court reconsidered the case and erroneously rejected the claim of the Petitioner by referring to the Finance Department Office Memorandum No.4554 dated 2302.2016. Being aggrieved by such conduct of the Opposite Parties, the Petitioner has approached this // 3 //

Court by filing the present Writ Petition.

5. Learned Additional Standing Counsel on the other hand contended that pursuant to the order passed by this Court, the case of the Petitioner was considered by the Opposite Parties and accordingly the same has been rejected vide order dated 26.06.2023 under Annexure-8 to the Writ Petition. He further contended that the authorities have considered the case of the Petitioner in detail and has come to a conclusion that the Petitioner is not eligible to get the benefit as claimed by him. Accordingly, learned counsel for the Petitioner submitted that the Opposite Parties have not committed any illegality in rejecting the claim of the Petitioner and refusing to grant 3rd RACP with Grade Pay of Rs.6600/- as claimed by the Petitioner.

6. Having heard learned counsel for the respective parties, on careful examination of the materials on record, this Court is of the view that the sole question involved in the present writ Petition is that whether the Petitioner is entitled to get 3rd RACP benefit with Grade Pay of Rs.6600/- as claimed by him. On critical analysis of the order under Annexure-8, this Court found that the Opposite Party No.1 while rejecting the claim of the Petitioner for grant of 3rd RACP benefit has referred to the Finance Department O.M. No.4554 dated 23.02.2016 and in view of the aforesaid O.M. while implementing the RACP claim the authorities have considered the financial upgradation of the Petitioner by counting the period from the date of direct entry date and accordingly they have rejected the claim of the Petitioner and he was not found eligible in view of the aforesaid O.M. dated 23.02.2016. It is pertinent to mention here that the aforesaid O.M.No.4554 dated 23.02.2016 was under active // 4 //

consideration of a Division Bench of this Court in the case of State of Odisha and others-v.Bikash Ranjan Dash and another in WP.(C) Nos.18749 of 2018 along with batch of similar other matters. The Division bench vide the judgment dated 29.10.2021 while taking note of the O.M. has affirmed the order passed by the Tribunal quashing the Finance Department O.M.No.4554 dated 23.02.2016. Further, by applying the ratio laid down by this Court which was confirmed by the Hon'ble Supreme Court in the case of State of Orissa-v.Biharilal Barik on 23rd August, 2017 in SLP(C) Diary No.20358 of 2017, the Division Bench has dismissed the said Writ Petition thereby confirming the order passed by the Tribunal.

7. On a close scrutiny of the impugned order under Annexure-8 dated 26.06.2023 this Court observes that after the O.M. dated 23.062016 was quashed and the same was affirmed by a Division Bench of this Court, the Opposite Party no.1 has erroneously relied upon the said O.M. to deny the claim of the Petitioner. In such view of the matter, this Court is of the considered view that the impugned order dated 26.06.2023 under Annexure-8 is unsustainable in law. Accordingly, the impugned order under Anneure-8 is hereby quashed. Further the matter is remanded back to Opposite Party no.1 to consider the case of the Petitioner afresh taking into consideration the law laid down by this Court in the case of State of Odisha and others -v.-Bikash Ranjan Dash and another in W.P.(C) No.18749 of 2018. Let the Petitioner approach Opposite party No.1 along with certified copy of this order and copy of the judgment in Bikash Ranjan Dash's case within three weeks from today. In the event the Petitioner approaches Opposite Party No.1, the Opposite Party No.1 shall do well to consider the case of the Petitioner in the // 5 //

light of law laid down by this Court in Bikash Ranjan Dash's case (supra) and take a final decision within two months from the date of communication of a certified copy of this order by the Petitioner. The final decision so taken be communicated to the Petitioner within two weeks thereafter.

8. With the aforesaid observation, the Writ Petition stands disposed of.

9. Issue urgent certified copy of this order as per Rules.

( A.K. Mohapatra ) Judge RKS

Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 02-Nov-2023 13:10:26