Orissa High Court
Afr vs State Of Odisha And Others on 22 September, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 18142 OF 2020
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR
Susanta Kumar Dash ..... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioner : M/s. M.K. Mohanty,
A. Mishra, M.R. Pradhan
and T. Pradhan, Advocates.
For Opp. Parties : Mr. A.K. Mishra,
Addl. Govt. Advocate
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Date of hearing and Judgment : 22.09.2023
DR. B.R. SARANGI, J. The petitioner, who is working as a
Duftary in the office of the S.D.J.M., Sonepur in the
district of Subarnapur, has filed this writ petition seeking
to quash the order dated 27.01.2020 passed by the
learned District Judge, Sonepur under Annexure-8
rejecting the representation filed by him to grant
promotional scale of pay of Rs.2610-60-3150-65-3450/-
(Rs.4440-7440/- with G.P. of Rs.1400/-, the revised scale
of pay), as per the recommendation of Justice Shetty
Commission with effect from 01.05.1999 and give him all
consequential financial and service benefits.
2. The factual matrix of the case, in brief, is that
the petitioner, having Class-X failed qualification, was
appointed as Office Peon in the office of the Chief Judicial
Magistrate (CJM), Sonepur on 01.05.1999. While he was
so continuing, a resolution was passed on 24.12.2010 by
the Law Department of Odisha to implement the
recommendation of Justice Shetty Commission in respect
of Non-Judicial Staff of Sub-ordinate courts in the State.
Thereafter, this Court, on 16.08.2012, informed all the
District and Sessions Judges to grant promotional scale of
pay of Rs.2610-3450/- to Orderly Peons/Office Peons/
Sweepers/ NWM-cum-Sweepers/ Malkhana Guards/
Malkhana Peons/ Treasury Peons. Again, on 21.12.2012,
this Court directed to grant promotional scale of pay of
Rs.2610-3540/- (Rs.4440-7440/- with Grade Pay of
Rs.1400/- revised scale of pay) to Orderly Peons/Office
Peons/ Sweepers/ NWM-cum-Sweepers/Malkhana
Guards/ Malkhana Peons /Treasury Peons. Thereafter, on
12.03.2014, following due procedure, the petitioner was
promoted to the post of Duftary, pursuant to which he
joined in the post on 02.04.2014. While he was so
continuing, the petitioner was given RACP on 01.10.2015
with effect from 01.01.2013.
2.1. Thereafter, on 13.09.2017, the petitioner made
a representation to the learned District Judge, Sonepur,
through the S.D.J.M., Sonepur, to grant him promotional
scale of pay, as per resolution dated 14.05.2010 and also
as per the direction of this Court on 21.12.2012. The
S.D.J.M., Sonepur recommended the case of the
petitioner on 20.02.2019 stating inter alia that the
petitioner is discharging his duty with sincerity. Again, on
20.11.2019, similar recommendation was also made by
the S.D.J.M., Sonepur. On consideration of the
recommendations, the representation filed by the
petitioner was rejected by the learned District Judge,
Sonepur vide Annexure-8 dated 27.01.2020 stating inter
alia that the petitioner has already obtained his RACP
w.e.f. 01.01.2013 and, therefore, he is not entitled to get
the promotional scale of pay, as claimed by him. Hence,
this writ petition.
3. Mr. M.K. Mohanty, learned counsel for the
petitioner contended that since the petitioner joined in the
post of Office Peon and subsequently got promotion to the
post of Duftary on 12.03.2014, in which post he joined on
02.04.2014, he is entitled to get promotional scale of pay
of the post of Duftary, in view of the recommendation
made by Justice Shetty Commission and also the
communications made by this Court on 16.08.2012 and
21.12.2012. But, without considering the same in proper
perspective, rejection of the representation filed by the
petitioner on 13.09.2017 vide impugned order dated
27.01.2020, cannot be sustained in the eye of law and the
same is liable to be quashed.
4. Mr. A.K. Mishra, learned Addl. Government
Advocate appearing for the State-opposite parties
contended that it is not in dispute that the petitioner was
continuing as an Office Peon and thereafter promoted to
the post of Duftary. But, by the time he got promotion to
the post of Duftary, he had already exercised his option to
get the benefit of RACP. It is contended that pursuant to
the order dated 01.10.2015, the benefit of RACP had
already been extended to the petitioner w.e.f. 01.01.2013,
which was prior to his date of promotion, i.e., 12.03.2014
to the post of Duftary, in which he joined on 02.04.2014.
It is further contended that due to stagnation of
promotional benefit, RACP is being paid to an employee
and, as such, the petitioner, having exercised his option
and received such benefit w.e.f. 01.01.2013 before he got
promotion, now question of granting any promotional
scale of pay does not arise because the petitioner has
already reached the scale of pay admissible to the
promotional post. Thus, it is contended that the learned
District Judge, Sonepur has not committed any error in
rejecting the representation filed by the petitioner on
13.09.2017 vide the order impugned dated 27.01.2020
and, as such, the same does not warrant any interference
of this Court at this stage. Consequentially, dismissal of
the writ petition is sought for.
5. This Court heard Mr. M.K. Mohanty, learned
counsel appearing for the petitioner and Mr. A.K. Mishra,
learned Addl. Government Advocate appearing for the
State-opposite parties in hybrid mode and perused the
record. Pleadings having been exchanged between the
parties, the matter is being disposed of finally with the
consent of learned counsel for the parties at the stage of
admission.
6. The undisputed fact is that the petitioner was
appointed as Office Peon on 01.05.1999 and got
promotion to the post of Duftary on 12.03.2014, pursuant
to which he joined on the said post on 02.04.2014. Prior
to getting promotion, he had exercised his option to
receive the benefit of RACP because of the fact of
stagnation of promotional post, which he availed w.e.f.
01.01.2013, pursuant to order dated 01.10.2015. Having
received RACP benefit w.e.f. 01.01.2013, now the
petitioner claims that he is entitled to get scale of pay
admissible to the promotional post of Duftary, which is no
more available to him, as he has already reached the scale
of pay attached to the post of Duftary by availing RACP.
7. Before delving into the question involved in the
present writ petition, it is worthwhile to note that being
rules made by the Governor of Odisha under clause (b) of
sub-section (2) of Section 241 of the Government of India
Act, 1935 continued in force under Article 330 of the
Constitution of India, as amended from time to time
under the proviso to Article 309 of the Constitution of
India, the Odisha Service Code was framed, which came
into force with effect from the 1st April 1939. The rules in
the Odisha Service Code, which have been framed by the
Governor of Odisha under clause (b) of sub-section (2) of
Section 241 of the Government of India Act, 1935, are
applicable to State Services, Special Officers and
Subordinate Services under the rule-making control of the
Government of Odisha. Thereby, the Odisha Service Code
is deemed to be Code of Rules made under Article 309 of
the Constitution of India.
8. In Finance Department Notification No.11711-
F dated 20th August, 1950, it has been clarified that in
exercise of powers conferred by Article 309 of the
Constitution of India read with Article 302 thereof, the
Governor of Odisha has been pleased to direct that the
Odisha Service Code shall be deemed to be a Code of
Rules made under Article 309 of the Constitution of India.
9. In B.S. Jadav v. State of Haryana, AIR 1981
SC 561, the apex Court held that the power of Governor
under proviso to Article 309 of the Constitution is
legislative power. Under this proviso, he substitutes for
the legislature because the legislature has not yet
exercised its power to pass an appropriate law on the
subject. The Governor is thus competent to frame rules
regarding recruitment and conditions of service of Judicial
Officers by virtue of powers under Article 309 of the
Constitution.
10. In State of Bihar v. Bal Mukund Sah, AIR
2000 SC 1296, the apex Court held that Article 309 of the
Constitution is expressly made subject to other provisions
of the Constitution and subject to that, appropriate
legislature or Governor can regulate the recruitment and
conditions of service of persons appointed to public
services and posts in connection with the affairs of State
concerned.
11. Applicability of said rules to a public servant is
well defined in S.V. Perelekar v. District Magistrate,
Thane, AIR 1957 SC 23, wherein the apex Court stated
that the test to determine whether a person is a public
servant is-
(1) Whether he is in the service and pay of the
Government; and
(2) Whether he is entrusted with the
performance of any public duty.
12. In Ramesh Balak Kishna Kalkarni v. State
of Maharashtra, AIR 1985 SC 1655, the apex Court held
that a public servant is an authority who must be
appointed by the Government authority, remain in the
pay of the Government discharge duties in accordance
with Rules, regulations made by the Government.
13. Therefore, a public servant, being in service
and pay of the Government, performs the public duties is
the test to be followed for the said purpose. Rule-33 of the
Odisha Service Code has explained the meaning of 'pay'
which reads as follows:
"'Pay' means the amount drawn monthly by the
Government servant as:-
(a) (i) the pay, other than special pay or pay granted
in view of his personal qualifications, which has
been sanctioned for a post held by him
substantively or in an officiating capacity or to
which he is entitled by reason of his position in
the cadre.
(ii) special pay and personal pay; and
(iii) any other recurring emoluments which may be
specially classed as pay by the State
Government.
(b) In the case of an officer of another State
Government or Government of India on
deputation to the government of Orissa, "Pay"
means the pay as defined in the rules of the said
State Government or Government of India and
applicable to the officer during the period of
deputation, except as otherwise specified in the
terms the deputation with the concurrence of the
Government of Orissa."
14. The Concise Oxford Dictionary, 8th Edition
(1990 at page 874) defines the word 'pay' in its ordinary
significance in relation to service means to give what is
due for service done. But in relation to Public service in
India, the word "pay" contained in the various service
Rules.
15. In State Bank of India v. K.P. Subbaiah,
2003 AIRSCW 3436, the apex Court held as follows:-
"In service Jurisprudence the expression 'pay'
and 'pay scale' are conceptually different
connotations. Pay is essentially a consideration
for the services rendered by an employee and is
the remuneration which is payable to him.
Remuneration is the recurring payment for
services rendered during the tenure of
employment. Pay and salary are necessary not
interchangeable concepts."
16. In N.D.P. Namboodripad v. Union of India,
(2007) 4 SCC 502, the apex Court held that 'pay' means
the amount drawn monthly by an officer as-
(i) The pay, other than special pay or
pay granted in view of his personal
qualifications, which has been
sanctioned for a post held by him
substantively or in an officiating capacity
or to which is entitled by reason of his
position in a cadre,
(ii) Personal pay and special pay, and
(iii) Any other emoluments which may be
specially classed as pay by the
Government.
17. This being the meaning and definition of 'pay'
attached to Rule-33 of the Odisha Service Code, Chapter-
IV of the said Code deals with 'Pay' in broader sense and
Section-1 thereof deals with time scale of pay. Rule-73 of
the Odisha Service Code reads as follows:
"The rules in this section apply to all time scale
of pay, except in so far as they may be
inconsistent with terms specially sanctioned by
the State Government for any particular time
scale. The application of Rules 76 and 81 is not
confined to posts on a time scale of pay but
extends to all posts."
18. In Bombay Dyeing and Manufacturing Co. v.
State of Bombay, AIR 1958 SC 328, the apex Court held
that a Government employee is entitled to draw the pay
while he is on duty. The duty includes the departmental
examination or any other optional examination or training
of the Government employees, provided they are permitted
to do so by the authority concerned. When an employee
has done his work, the amount of wages earned by him
becomes a debt due to him from the employer and is
property, which can be assigned under the law. If the pay
has accrued, the right to receive it becomes a
Fundamental Right.
19. Rule-74 of the Odisha Service Code deals with
fixation of pay, which reads as follows:
"(a) The initial pay of a person, other than one
already in service of Government, when
appointed to a post under government shall
be the minimum of the pay scale prescribed
for the post unless otherwise decided by
Government.
(b) Where a Government servant holding a post,
is promoted or appointed to another post
carrying duties and responsibilities of
greater importance than those attached to
the post held by him, his initial pay in the
time scale of the higher post shall be fixed
at the stage next above the pay notionally
arrived at by increasing his pay in respect
of the lower post by one increment at the
stage at which such pay has acquired.
Provided that where a Government servant,
immediately before his promotion or appointment
to a higher post; is drawing pay at the maximum
of the time-scale of the lower post, his initial pay
in the time-scale of the higher post shall be fixed
at the stage, next above the pay notionally
arrived at by increasing his pay in respect of the
lower post by an amount equal to his last
increment in the time scale of the lower post.
(c) [Deleted w.e.f.28. 5. 1987 vide F.D.
Notification No. 22836/F. dt 26. 5.1987.]
(d) Where a Government servant is appointed
to another post which does not involve
assumption of duties and responsibilities
of greater importance than those atto the
old post, his pay will be fixed at the stage
of the time-scale which is equal to his pay
in respect of the old post, or if there be no
such stage, the stage next below that pay
plus personal pay equal to the difference,
and in such time as he would have
received an increment in the time scale of
the old post or for the period after which
an increment is earned in the time-scale
of the new post, whichever is less.
Provided that where the minimum pay of the
time-scale of the new post is higher that his in
respect of the old post, he will draw that
minimum as initial pay.
Provided that cases covered by the sub-rule (b)
and this sub-rule other than cases of
reemployment after resignation, removal or
dismissal from public service, if the Government
servant either has previously held the same post
or a post on an identical time-scale, then the
initial pay shall not be less than the pay, other
than special pay personal pay, or emoluments
specially classified as pay by the State
Government under clause (iii) of sub-rule (a) of
Rule 33, which he drew on the last such
occasion, and the period during which he drew
that pay on such last and any previous
occasions all count for increment in the stage of
the time scale equivalent to that pay. If stage
next below that pay, the difference being allowed
as personal pay. However, except the case
where the Government servant is appointed to
the same post, if the pay last drawn by the
Government servant in a temporary post has
been inflated by the grant of premature
increments, the pay which he would have drawn
but for the grant of those increment shall be
taken for the purpose of this provision to be the
pay which he last drew, in the temporary post.
(e) If the substantive pay of the permanent
post is at any time enhanced as a result
of increment or otherwise, the pay of the
Government servant shall be refixed from
the date of such enhancement, where
such refixation is to his advantage
provided that the pay so refixed does not
exceed the substantive pay in the
permanent post. This shall not apply to a
Government servant who is appointed on
his own request to the new post.
(f) When a Government servant is
transferred on his request to a post
carrying less pay than the pay of his old
post and the maximum pay in the time
scale of that post is less than his pay in
respect of the old post, he will draw that
maximum as initial pay."
20. In Finance Department Notification No.3364/F
dated 06.02.1964, it has been stated as follows:-
"1. Authority competent to fix the pay: The
undersigned is directed to say that references
are made to this Department for clarification of
the authority competent to fix the pay under Rule
74 of the Orissa Service Code, Volume I.
According to the provision of Rule 4 of the Orissa
Service Code, Volume I, any power which is
expressed in the rules of the said Code as
residing in the State Government and delegated
after consultation with Finance Department may
be exercised by the subordinate authority in
respect of Government servants under its
administrative control to such extend and
subject to such condition as the State
Government may determine. In pursuance of
this, when no power in the rules of the said
Code has been expressed as residing in the
State government, the concurrence of finance
Department for grant of concession admissible
under the rule is not insisted upon by the audit.
When the rule confers a certain benefit without
specifying the authority competent to exercise
the power, the State government servant is
entitled to the same and it can be allowed by the
Head of Office by issue of an office order. Even
where the appointing authority is a superior
officer, the subordinate officer is competent to
allow such concession by issue of an office
order. As in the Rule 74 ibid., no power as
residing in the State Government has been
expressed and the authority competent to fix the
pay has not been specified, the concurrence of
Finance Department is not necessary for fixation
of pay under the said rule excluding the cases
coming under the "Exception" thereunder. In the
matter of fixation of pay where a certificate is
required to be furnished under the "Exception" of
the said rule the concurrence of the Finance
Department to the issue of the said certificate
may be obtained for satisfaction of audit."
Similarly, Finance Department Notifications
No.24495/F., dated 21.06.1988 and No.25773/F., dt.
11.06.1992 prescribe with regard to exercise of option for
fixation of pay on promotion to higher post, to the
following effect:-
"2. Exercise of option for fixation of pay on
promotion to higher post: An employee may be
given the benefit of exercising an option for
fixation of his pay on promotion as under:
(a) Either his initial pay may be fixed in the
higher post on the basis of Rule74(b) of Orissa
Service Code straightway without further review
on accrual of increment in the pay scale of the
lower post, or
(b) his pay may be fixed initially in the manner
as provided under Rule 74(d) of Orissa Service
Code which may be refixed on the basis of the
provisions of Rule 74(b) of Orissa Service Code
on the date of accrual of his next increment in
the scale of pay of the lower post.
Consequently upon fixation of pay under (b)
above, the next date of increment will fall due on
completion of 12 months' qualifying service from
the date the pay is refixed on the second
occasion.
2. Option can only be exercised in case of
regular promotion where fixation of pay is
required to be made under Rule 74 (b) of Orissa
Service Code.
3. Option is not admissible in case of
combination of appointments or purely
temporary promotion (which does not include ad
hoc promotion made on the basis of D.P.C.
recommendation).
4. Protection of officiating pay drawn during
earlier occasin available under the third proviso
to Rule 74(d) of Orissa Service code will not be
applicable where option is exercised for
refixation of pay under Rule 74(b) of Orissa
Service code after accrual of increment in the
lower post."
21. Rule 76 of the Odisha Service Code reads as
follows:-
"Pay when pay of a post is changed:
The holder of a post, the pay of which is
changed, shall be treated as if be were
transferred to a new post on the new pay;
provided that he may at his option retain his old
pay until the date on which he has earned his
next or any subsequent increment on the old
scale, or until he vacates his post or ceases to
draw pay on that time-scale. The option once
exercised is final."
22. On the basis of the recommendation of the 6th
Central Pay Commission, Government of India in the
Ministry of Finance (Department of Expenditure), vide
Notification No.G.S.R.622(E) dated the 29th August, 2008,
revised the pay scale of Central Government employees
w.e.f. 01.01.2006. Consequent upon revision of the pay
scale of the Central Government employees, the State
Govt. constituted a Fitment Committee in FD Resolution
No.CS-I(P)-15/2008-41279/F, dated the 9th September,
2008 to recommend revision on the pay scale of the State
Government employees, to suggest modalities and
procedure of fitment of the existing grades in the revised
scale of pay, to examine anomalies in the existing pay
scale and to review the scale of other allowances and
relatable pay. The said committee submitted its
recommendation to Government on 03.12.2008.
23. Having regard to the recommendation of the
Fitment Committee, demands of various service
associations and after careful consideration of all aspects
of related issues, including the Scales of Pay prevalent in
the Central Government, the State Government revised
the pay structure of the State Government employees as
indicated in Annexure-1 thereof. It has been stipulated
therein that Assured Career Progression (ACP) will be
applicable to all the State Government employees up to
Grade-A w.e.f. 01.01.2006 in three stages i.e. 1st ACP on
completion of 15 years, 2nd ACP after 25 years and 3rd
ACP after 30 years of service, if they continue in one
post/grade. The benefit of ACP will be given only after
screening of each and every case by the screening
committee to be constituted by the controlling
Departments and all norms of promotion shall be taken
into consideration for allowing ACP in different stages.
The financial benefit to the extent of 3% of the basic pay
plus grade pay will be added on availing ACP in different
stages and next increment will accrue one year after. If
the Government employee has already availed both 1st
and 2nd stage of Time Bound Advancement (TBA) scale
under earlier revised pay rules, he/she will not be again
entitled to the ACP in the revised pay. However, the 3rd
ACP after completion of 30 years of service shall be
applicable, as stated therein. Accordingly, pay fixation
formula evolved and benefit has been extended w.e.f.
01.01.2006 to all the State Government employees.
24. The State Government, vide Finance
Department Notification No.3560/F., dated 06.02.2013,
introduced Revised Assured Career Progression Scheme
(RACPS) for the State Government Employees, which
reads as follows:-
"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 he
Orissa Revised Scales of Pay Rules, 1998.
Accordingly, all State Government employees
avail ACP in 3 stages i.e. Ist ACP on completion
of 15 years of service, 2nd ACP after 25 years
Or 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.
5. The details of the RACP Scheme and
conditions for grant of the financial upgradation
under the Scheme are given in Annexure-1.
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 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.) v. 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 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 v. 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 v. 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
Art.14 of the Constitution which mandates that unequals
cannot be treated as equals.
29. In State Bank of India v. 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. v. 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 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 v. 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:-
"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 din
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 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 v.
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.
33. Much reliance has been placed on the
resolution dated 24.12.2010 of the Government of Odisha
in Law Department, wherein it has been notified with
regard to implementation of Justice Shetty Commission's
recommendations in respect of Non-Judicial staff of
Subordinate Courts in the State, in pursuance of the
direction contained in the judgment dated 07.10.2010 of
the apex Court in W.P.(C) No.1022 of 1989 (All India
Judges Association v. Union of India). With regard to
implementation of the recommendations of Justice Shetty
Commission in respect of Non-Judicial Staff of
Subordinate Courts, the State Government, after careful
consideration, decided to implement the
recommendations made by Justice Shetty Commission for
the Non-Judicial Staff of Subordinate Courts in the State
of Odisha. Accordingly, the existing scale of pay of
Rs.2610-60-3150-65-3540 of Duftary/ Gardener/
Jamadar/ Record Keeper under the ORSP Rules, 1998
was revised to Rs. 2650-65-3300-70-4000/- subject to
fulfillment of the stipulations made by the Justice Shetty
Commission, i.e., qualification, mode of recruitment and
reservation, etc. to be provided in the relevant Ministerial
Service Rules.
34. This Court, vide letter dated 16.08.2012 under
Annexure-4, instructed all the District & Sessions Judges
to grant promotional scale of pay of Rs.2610-3430/- to
Orderly Peons/ Office Peons/ Sweepers/NWM-cum-
Sweepers/ Malkhana Guards/ Malkhana Peons/Treasury
Peons, as per recommendation of Justice Shetty
Commission, and also directed to identify such Class-IV
(Group-D) employees for getting benefit of promotional
scale keeping in view the recommendation of the Justice
Shetty Commission and intimate this Court for taking
necessary action. Thereafter, this Court, vide letter dated
21.12.2012 issued to all the District and Sessions Judges,
intimated that the Class-IV (Group-D) employees of the
Sub-ordinate Courts, such as Office Peons, Orderly Peons,
malkhana Guards and Treasury Peons, who possesses the
qualification of VII standard and have put in 10 years of
service and are not wholly connected with manual work
but carrying higher duties and responsibilities, are
entitled to get the benefit of promotional scale of pay of
Rs.2,610-3,540/- (Rs.4,440-7,440/- with Grade Pay
Rs.1,400/- the revised scale of pay).
35. There is no doubt that the recommendation of
Justice Shetty Commission, which has been accepted by
the Government of Odisha in its Law Department,
pursuant to order of the apex Court in W.P.(C) No.1022 of
1989 (All India Judges Association v. Union of India),
now has been implemented in the Sub-ordinate Courts,
vide letters dated 16.08.2012 and 21.12.2012 of this
Court. There is no iota of doubt that Class-IV employees
are entitled to get the benefit of the recommendation of
Justice Shetty Commission and, as such, their scale of
pay have been fixed and, accordingly, they have been
extended with the benefit as due and admissible to them.
36. Now question comes when the petitioner had
opted for RACP benefit and in fact he was extended with
such benefit w.e.f. 01.01.2013 by communicating him
vide letter dated 01.10.2015 and, thereafter, he got
promotion to the post of Duftary on 12.03.2014, pursuant
to which he joined on 02.04.2014, can he be again
entitled to get the scale of pay in his promotional post of
Duftary, which scale he has already availed by way of
RACP by exercising his option. To be more specific, the
petitioner, on 16.09.2013, exercised his option to cover
himself under the RACP Scheme. Accordingly, his case
was considered and he was given the benefit of RACP, vide
order dated 29.09.2015.
37. It is worthwhile to mention here that in para-5
of the resolution dated 24.12.2010 of the Govt. of Odisha
in Law Department, it has been clearly mentioned that an
employee, who has availed the benefits of RACPs (earlier it
was ACP), shall not be entitled to get the promotional
benefits. Since the petitioner has voluntarily availed RACP
by exercising his option, he is not entitled to get the
benefits of higher scale of pay of Rs.2610-60-3150-65-
3450/-, in view of the letter dated 21.12.2012 of this
Court read with the Govt. of Orissa, Law Department
resolution dated 24.12.2010.
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 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.
39. In the above view of the matter, this Court does
not find any error apparent in the order dated 27.01.2020
passed by the learned District Judge, Sonepur in rejecting
the representation filed by the petitioner on 13.09.2017 so
as to warrant interference with the same.
40. In the result, therefore, the writ petition merits
no consideration and the same is hereby dismissed.
However, there shall be no order as to costs.
..................................
DR. B.R. SARANGI,
JUDGE
M.S. RAMAN, J. I agree.
..................................
M.S. RAMAN,
JUDGE
Orissa High Court, Cuttack
The 22nd September, 2023, Alok/Ashok
Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 25-Sep-2023 16:19:35
