Orissa High Court
Tribhuban Behera vs State Of Odisha And Others .... Opposite ... on 1 October, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9203 of 2022
Tribhuban Behera .... Petitioner
Mr. Manoj Kumar Mohanty, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Arnav Behera, ASC
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER
08. 01.10.2024
This matter is taken up through Hybrid Mode.
2. Challenging the Order No.566 dated 10.01.2022 passed by
the Chief District Medical & Public Health Officer, Cuttack-
opposite party no.3, wherein and whereby the grievance of the
petitioner for grant of RACP with effect from 31.01.2014 was
rejected, the petitioner has approached this Court by way of filing
this writ petition invoking extraordinary jurisdiction of this Court
under Articles 226 & 227 of the Constitution of India with the
following prayer(s):
"The Petitioner most respectfully prays that the Hon‟ble Court
may be graciously pleased to allow the writ petition, issue a
writ or direction in the nature of certiorari or any other
appropriate writ or direction quashing the order No.566
dtd.10.01.2022 passed by the CDM & PHO, Cuttack under
Annexure-3 and further issue a direction in the nature of
mandamus or any other appropriate writ or direction to the
opposite parties to grant RACP to the petitioner w.e.f.
31.01.2014 with all consequential financial and service
Page 1 of 12
benefits and pass such other or further order or orders as are
deemed just and proper. "
3. Facts as adumbrated in the writ petition reveal that the
petitioner was appointed as Dresser in Class-IV Category Post on
03.06.1978 and, subsequently, he was promoted to the post of
MPHW (M) on 29.10.2003 and joined on 31.01.2004 in CHC,
Kanpur in the district of Cuttack.
3.1. The Government of Odisha in Finance Department
introduced the Revised Assured Career Progression Scheme
(RACP) vide Resolution No.3560 dated 06.02.2013. The aim and
object of the said scheme is to give incentive to the employees
whose promotion has been stagnated within certain period of
service. Unless the employees are given incentives by way of
financial up-gradation, the moral of the Government employees
would not be upgraded and the employees would suffer frustration.
Therefore, the Government of Odisha in Finance Department in
substitution of earlier Time Bound Advancement, introduced the
Assured Career Progression, according to which benefit is given on
completion of 10, 20 and 30 years of service in the event an
employee does not get promotion. The Resolution of the
Government of Odisha in Finance Department dated 06.02.2013
reads as thus:-
"Government of Odisha
Finance Department
***
Resolution
No.3560/PCC(A)-49/2012/F Date:6/2/2013
Sub:- Revised Assured Career Progression Scheme
(RACPS) for the State Government Employees
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 the Orissa Revised Scales of Pay Rules, 1998.
Accordingly, all State Government employees avail ACP in
3 stages i.e. 1st ACP on completion of 15 years of service,
2nd ACP after 25 years of 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.
By order of the Governor
Sd/-
Additional Secretary to Government"
3.2. It is alleged that since the RACP was not granted to the
petitioner on completion of ten years of service on promotional post
on 30.01.2014 as he is entitled to get RACP from 31.01.2014, he
approached this Court by filing W.P.(C) No.1472 of 2021 and this
Court while disposing of the said writ petition vide order dated
20.01.2021 directed opposite party no.1 therein to consider the
request of the petitioner involved in the said writ petition by treating
the same as representation at his instance and take a lawful decision
in the matter on the basis of the plea raised by him in the writ
petition along with the judgment annexed to the said writ petition.
3.3. The case of the petitioner further reveals that pursuant to the
aforesaid direction of this Court, opposite party no.3 disposed of the
representation and communicated the decision thereof to the
petitioner vide Order No.566 dated 10.01.2022 by the CDMO &
PHO, Cuttack, which is under challenge in the present writ petition.
The order dated 10.01.2022 passed by opposite party no.3 reads as
follows:-
"Office of the Chief Distirct Medical and
Public Health Officer, Cuttack
No.566 CDM&PHO, Cuttack date 10/1/2022
Order
WHERE AS, Sri TribhubanBeheraMPHW(M) filed
W.P.(C) No.1472 2021 before the Hon‟ble HIGH COURT
for redressal of his grievance for RACP.
AND WHERE AS Hon‟ble HIGH COURT of ORISSA
directed on 20.01.2021 as thus,
"Looking to the prayer made in this writ petition and
as decision in the matter is required to be taken by the
opposite party No.1, this writ petition stands disposed of
with direction to OP No.1 to consider the request of the
petitioner involved in this writ petition by treating the same
as a representation at the instance of the petitioner and take
a lawful decision in the matter, taking into account the plea
raised in the writ petition as well as the judgment appended
thereto. The entire exercise shall be completed within a
period of two months from the date of communication of the
order along with copy of the writ petition by the petitioner.
AND WHERE AS Government of ODISHA HEALTH
& FAMILY WELFARE Department disposes the
representation of the petitioner in compliance to the Order
dated 20.01.2021 passed by the Hon‟ble HIGH COURT
ORISSA in W.P.(C) No.1472/2021 in Order No.9988 H &
FW dated 31.03.2021 under intimation to the petitioner,
Director of Health Services Odisha, the office of the
undersigned and Advocate General Odisha, HIGH COURT,
Cuttack in next Memo No.9989, 9990, 9991 and 9992 dated
31.03.2021 respectively.
AND WHERE AS in pursuant of the direction of the
Hon‟ble HIGH COURT ORISSA and subsequent orders of
H & FW Department the case of Sri TribhubanBeheraVrs-
B.K. Mohapatra & Other (arising out of W.P.(C)
No.1472/2021, disposed of on 20.01.2021 & CONTC
No.2857/2021, disposed of on 11.06.2021) the records
maintained at the level of appointing Authority were re-
examined and taken into consideration for passing of instant
order.
AND WHERE AS upon scrutiny of the averments it is
revealed that Sri Behera appointed as Dresser and joined on
03.06.1978 in the Scale of pay 2550 to 3200/- and continued
till 30.01.2004.
AND WHERE AS the petitioner upon posting to the
post of MPHW(M) untrained and joined on 31.01.2004 in
the Scale of pay 2650 to 4000/-.
AND WHERE AS, the petitioner moved to next higher
Scale of pay allowed for the post of MPHW(M) Trained on
completion of MPHW(M) training and joined on 25.08.2011
in the Scale of pay of 5200 to 20,200/- with grade pay-
2000/-.
AND WHERE AS, the petitioner retired as such from
Govt. Service on Superannuation on 30.04.2019. The
Scrutiny reveals that the petitioner has not properly gone
through Resolution No.3560/F-PCC(A)-49/2012 dated
06.02.2013 & Memo No.1738/F-PCC(A)-37/2013 dated
20.01.2014 and made a Misrepresentation of facts.
Now, therefore, in view of the aforesaid, facts & Rule
of the subject, the claim of the Sri
TribhubanBeheraMPHW(M) retired for grant of RACP
bears no merit for consideration being decided by Govt. of
Odisha Finance Department Resolution No.3560/F-
PCC(A)-49/2012 dated 06.02.2013 & Memo No.1738/F-
PCC(A)-37/2013 dated 20.01.2014 and hence no further
benefits allowed, disposing the grievance of the applicant.
Sd/-
Chief District Medical & Public
Health Officer, Cuttack"
4. Counter affidavit has been filed by the opposite party no.4
denying the claim of RACP made by the petitioner. Paragraphs-8
and 9 of the counter affidavit read as follows:-
"8. That, in reply to the averments made in Para-4 of the
writ petition, it is humbly submitted that, the spirit of
Finance department as per Annexure-2 of the petitioner is
definitely towards providing financial benefits on
completion of 10, 20 & 30 years of service but the
petitioner had already availed higher scale of pay 5200 to
20200/- GP 2000/- w.e.f. 25.08.2011 whereas the joining of
the petitioner in the scale of pay 2650/- to 4000/- was
31.01.2004. The petitioner retired on 30.04.2019 having no
scope to move to next higher scale of pay. The petitioner
without going deeply through Resolution of Finance
Department in Memo No.1738/F dated 20.01.2014 preferred
to approach Hon‟ble High Court Orissa in the present writ
petition. In view of this, the claim of the petitioner bears no
merit, thus, the earlier prayer of the petitioner was disposed
of as placed in annexure-3 of the petitioner by OP.No-04.
1. The petitioner joined as 03.06.1978 In the scale of
Class IV / Dresser Pay Rs-2550/-
to 3200/-
2. The petitioner joined in 31.01.2004 In the Scale of
promotional post of Pay Rs-2650/-
Untrained MPHW(M) in to 4000/-
another cadre
3. The petitioner availed 25.08.2011 In the Scale of
financial Up-gradation pay 5200/- to
on Trained Scale of 20200/- + GP-
MPHW(M) 2000/-
4. The petitioner retired 30.04.2019 As he has
from Govt. Service prior to availed
completion Financial
of 20 years upgradation in
the Cadre of
MPHW(M)-
1st:-
25.08.2011
2nd:- Not
considered as
not completed
20 years of
service.
9. That, in reply to averments made in Para-5 the writ
petition, it is humbly submitted that, it is the repetition of the
claim of the petitioner misleading the facts that the
petitioner was eligible to avail RACP w.e.f. 31.01.2014
without realising the fact that his date of availing higher
scale of pay was 25.08.2011, but not 30.01.2014. As
submitted in outgoing para-4, the petitioner retired on
superannuation on 30.04.2019. Misleading of facts by a
Govt. Servant or retired Govt. servant is not desirable
rather, attracts disciplinary action against the petitioner.
Therefore, earlier representation of the in W.P.(C) No.1472
of 2020 was disposed of as filed in annexure-3 in the present
writ petitioner by the petitioner as the claim of the petitioner
bears no merit in pursuant of Finance Department
Resolution annexed at Annexure-2 and Annexure-4 by the
petitioner in the present writ petition."
5. Sri Manoj Kumar Mohanty, learned counsel appearing for
the petitioner submitted that the impugned order refusing to grant
RACP to the petitioner with effect from 31.01.2014 is not only
illegal, arbitrary, but also it is contrary to settled position enunciated
by this Court in the case of Balabhadra Sarangi Vrs. State of
Odisha, 2003 (I) OLR 24 (Division Bench); State of Odisha Vrs.
Bipin Bihari Pattanayak, W.P. (C) No.9060 of 2016 disposed of
vide Order dated 05.04.2017 (Division Bench); Bairagi Charan
Sahoo Vrs. State of Odisha, 2021 (I) OLR 692; Anadi Charan
Nayak Vrs. State of Odisha, WPC (TAC) No.84 of 2015 vide Order
dated 11.01.2023 (Single Bench). Drawing attention of this Court to
the Resolution of the Government of Odisha in Finance Department
dated 06.02.2013 under Annexure-2 as clarified further by the
Finance Department in Letter dated 20.01.2014, submitted that the
petitioner is entitled to get the benefit of RACP from 31.01.2014
and, as such, the impugned order under Annexure-3 deserves to be
quashed and necessary direction is required to be issued to the
opposite party no.3 to grant benefit under RACP to the petitioner
within a stipulated period. In support of his submission, learned
counsel appearing for the petitioner has relied upon the
decisions/judgments of this Court in the case of Balabhadra
Sarangi v. State of Orissa and others, reported in 2003 (I) OLR 24,
Bairagi CharanSahoo v. State of Orissa & others, reported in 2021
(I) OLR 692.
5.1. In the case of Balabhadra Sarangi (supra), this Court in
paragraphs-4, 5 and 6 has observed as follows:-
"4. The point involved in this writ petition is no more res
integra. The first decision of this Court on this point is that
of Bata Krishna Sahu v. State of Orissa (OJC No. 115 of
1992 disposed of on 5.5.1994). Chief Justice Nanavati
speaking for the Bench held :
„There is nothing on record to show that as a result of the
petitioner acquiring higher qualification, namely, the degree
of B.A. the became entitled to a higher grade or that his post
was regarded as a higher post, It is, therefore, difficult to
appreciate how the period of 15 years is to be counted not
from the date of appointment as a Hindi teacher but from
the date he was given some benefit as a result of his passing
B.A. examination. The petitioner having completed 15 years
of service in the same grade or post prior to ,1.1,1985, he
became entitled to the benefit of advancement pay scale.‟
The aforesaid ratio was subsequently followed in Sanatan
Barik v. State of Orissa (OJC No. 124of 1992 disposed of on
2.5.1995), Karunakar Biswal v. State of Orissa. 82 (1996)
CUT 666 as well as in Jyostna Mayee Behera v. State of
Orissa, 2000 (II) OLR 544. It has been consistently held in
all the cases that 15 years of service has to be counted from
the date of appointment for the purpose of granting
advancement scale of pay because the benefit is intended to
be given irrespective of other benefit that could have been
granted on acquiring higher educational qualification.
Emphasis had been laid on the words „grade or post‟ and
not on scale of pay which an employee had been drawing.
The scale of pay may undergo, changes during the tenure of
service of an employee following revision of pay scale from
time to time or on the employee‟s acquiring higher
academic qualification. As per the Finance Department
office memorandum, referred to above, an employee who
has held the same post or grade for 15 years is to be
considered for the advancement scale of pay.
5. Since the petitioner has been holding the post of
Classical Teacher with effect from 1.8.1970 and his drawal
of higher scale of pay on account of acquisition of
Sahityacharya qualification being immaterial, he is eligible
to enjoy the benefit of time bound advancement scale of pay
on completion of 15 years of service from that day in
accordance with the Finance Department memoranda.
6. In the result, the writ petition is allowed. The opposite
parties are directed to pay the differential amount to the
petitioner by the end of February, 2003."
5.2. In the case of Bairagi Charan Sahoo (supra), this Court in
paragraphs-11 and 12 has held as follows:-
"11. Taking into consideration the principle of law, as
discussed above, and applying the same to the present
context, this Court is of the considered view that though the
petitioner joined as Hindi Teacher on 02.07.1982 with a
qualification of Matric (Kovid) and subsequently he
acquired „Ratna‟ qualification on 25.10.1996 and HTTC,
Hindi Training qualification on 29.12.1999 and was allowed
the Hindi trained scale of pay of Rs.4500-7000/- w.e.f.
29.12.1999, that itself cannot disentitle him to get the time
bound advancement scale of pay for continuous holding the
"post" or "grade" for 15 years. Thus, drawal of higher
scale of pay on account of acquisition of „Ratna‟
qualification by the petitioner being immaterial, he is
eligible to enjoy the benefit of time bound advancement
scale of pay on completion of 15 years for holding of Hindi
teacher "post" or "grade" w.e.f. 02.07.1982 in accordance
with Finance Department Memorandum dated 29.12.1987,
which fact has been clarified by the Government on
20.06.1991, as has been dealt with in the judgment passed
by this Court in Balabhadra Sarangi mentioned supra. In
the meantime, though the petitioner has retired from service
on attaining the age of superannuation, but that ipso facto
cannot disentitle him to get the benefit, as claimed in the
writ petition.
12. In view of the facts and circumstances as well as the
law as discussed above, this Court is of the considered view
that the petitioner is entitled to get the time bound
advancement scale of pay on completion of 15 years of
service from the date of his initial appointment, i.e.,
02.07.1982. Therefore, this Court directs the opposite
parties to calculate the differential arrear salary and pay
the same to the petitioner forthwith preferable by 31st May,
2021, failing which it will carry an interest @9% per
annum."
6. Mr. Arnav Behera, learned Additional Standing Counsel
appearing for the opposite parties-State submitted that the
impugned order does not warrant interference of this Court as it has
been clearly stated in the impugned order dated 10.01.2022
(Annexure-3) that "the petitioner moved to next higher scale of pay
allowed for the post of MPHW (M) Trained on completion of
MPHW (M) Training and joining on 25.08.2011 in the Scale of pay
of Rs.5,200 to 20,200/- with grade pay Rs.2,000/-".
7. Considering the aforesaid facts and circumstances of the
case, so also the submissions advanced by the learned counsel for
the parties, the impugned order vide Annexure-3 is not sustainable
in the eye of law as the opposite party No.3 has proceeded on the
basis of scale of pay with reference to grade pay. Such a finding is
apparently contrary to the ratio of the judgments in Balabhadra
Sarangi (supra) and Bairagi Charan Sahoo (supra). In the said
cases it has been clearly laid down that this consistently viewed that
the entitlement is be counted from the date of appointment for the
purpose of granting advancement of scale of pay, but not from the
date of acquisition of educational qualification. This Court laid
emphasis on "grade or post" and not the scale of pay which the
employee had been drawing.
8. Therefore, the impugned order dated 10.01.2022 under
Annexure-3 passed by the opposite party No.3 deserves
interference. In the result, the writ petition is bound to succeed. As
a sequel to the aforesaid discussions, the impugned order under
Annexure-3 is set aside and the Chief District Medical and Public
Health Officer, Cuttack, opposite party no.3 is directed to re-
consider the claim of RACP made by the petitioner within a period
of three months from the date of receipt of copy of this order.
9. With the aforesaid observations and directions, the writ
petition stands disposed of.
(M.S. Raman)
Judge
Laxmikant/MRS
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 01-Oct-2024 16:56:37
